ROSADO & ASHCRAFT

[2019] FCCA 1539

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROSADO & ASHCRAFT [2019] FCCA 1539

Catchwords:
FAMILY LAW – Parenting – sole parental responsibility – spending time with arrangements in the context of a parent’s history of mental health issues impacting parenting capacity.

Legislation:

Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 61DAA, 61DAC

Cases cited:

AMS and AIF (1999) 199 CLR 160, 24 Fam LR 756

Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
MRR v GR [2010] HCA 4

Applicant: MR ROSADO

Respondent: MS ASHCRAFT

File Number: BRC 9414 of 2014

Judgment of: Judge Lapthorn

Hearing dates: 14 and 15 January 2019

Date of Last Submission: 15 January 2019

Delivered at: Brisbane

Delivered on: 6 June 2019

REPRESENTATION

Counsel for the Applicant: Ms McMillan QC

Solicitors for the Applicant: Rice Naughton McCarthy Family Lawyers

Solicitors for the Respondent: Self represented

ORDERS

1. That the orders made 11 November 2015, 13 February 2018 and 26 April 2018 (as amended 25 May 2018) be hereby discharged. 

2. That the Father have sole parental responsibility for the child, [X] born … 2009 (herein referred to as "the Child").

3. That in relation to any decision the Father is required to make in relation to education, religious and cultural upbringing, health and any other decision impacting upon the long-term welfare of the child, the Father is to undertake the following actions before making such decision:

   (a)The Father is to provide the Mother with no less than 14 days' notice in writing of any such proposed decision; and

   (b)The Father is to consult with the Mother (by email or text communication) with regard to any such proposed decision and make a genuine effort to give consideration to her expressed view and make a genuine effort to reach agreement with the Mother about any such proposed decision; and

   (c)In the event that no agreement is reached between the Father and Mother, the Father shall make the final decision and within 14 days of so doing, provide the Mother with written confirmation of the decision (by email or text is sufficient).

4. That the Child live with the Father.

5. That until further order and until such time as Order (6) applies, the Child spend time with the Mother for up to two hours each week supervised at and by the Uniting Care, Suburb A.

6. That until further order upon the Mother providing to the father:

   (a)two urine screen drug testing reports not less than 28 days apart and no more than 42 days apart with each showing no detectable presence of illicit substances; and

   (b)a written report from her treating general practitioner indicating her consistent attendance upon him or her to receive the injections of Abilify (Aripipazole) and details of all other professional supports received by the mother.

   The child’s time with the mother occur each week for two hours as follows:

   (c)in week one of a two week cycle supervised at and by the Uniting Care, Suburb A; and

   (d)in week two of a two week cycle unsupervised at a public place agreed to between the parents and failing agreement at Suburb B with handovers to occur at the entrance to the Suburb B Railway Station.

7. That for the purposes of the urine drug testing referred to in Order (6) above:

   (a)the certificate of results must include a temperature endorsement; and

   (b)be carried out at the Mother’s cost.

8. That the Mother forthwith attend upon a general practitioner to obtain advice and appropriate referrals to a pathologist for the purposes of conducting such drug testing as referred to above.

9. That in the event the Mother is hospitalised to receive mental health treatment, the Mother must inform the Father as soon as is practicable and this Order is an authority for the Father to communicate with the Mother's treating doctor and hospital staff to receive all information regarding the Mother's mental health condition, treatment, duration of hospitalisation and prognosis and shall be in substitute for any signed written authority that may be required.

10. That the Mother is hereby restrained from consuming alcohol and/or any illicit substance or being under the influence of alcohol and/or any illicit substance when the Child is spending time with her and for a period of 24 hours immediately prior to spending time with the Child.

11. That the Child communicate with the Mother by telephone each Thursday between 5.30pm and 6.00pm, with the Mother to initiate the call and the Father to ensure the Child is available to take the call.

12. That the Child communicate with the Mother by telephone between 5.30pm and 6.00pm on the following special occasions:

    (a)Mother’s birthday;

    (b)Christmas Day;

    (c)Mother’s Day; and

    (d)the Child’s birthday.

13. That the Father must facilitate the Child telephoning the Mother at any reasonable time as requested by the Child.

14. That each parent keep the other parent informed of changes to their respective residential addresses and/or home telephone numbers and /or mobile telephone numbers and email addresses within forty-eight (48) hours of any such change.

15. That the parents communicate primarily through SMS (or email) and only in relation to the Child, unless in the case of an emergency, then by telephone and any documents relating to the Child are to be exchanged by email.

16. That each of the Mother and the Father must ensure that they:

    (a)do not denigrate the other parent to, or in the presence or hearing of the Child;

    (b)use their best endeavours to ensure that no other person denigrates the other parent to, or in the presence or hearing of the Child;

    (c)do not discuss these proceedings or the contents of any documents filed in or intended for use in these proceedings to, or in the  presence  or hearing of the Child and will not permit any other person to do so; and

    (d)in this clause, denigrate includes abusing, insulting, belittling, rebuking or otherwise making negative comments to or about the other parent, members of the other parent family, in the presence or hearing of the Child.

17. That pursuant to section 65Y(2)(b) of the Family Law Act 1975 (Cth) the Father shall be and is hereby permitted to take the Child out of the Commonwealth of Australia for a holiday.

18. That for the purposes of Order 17, no less than seven (7) days prior to the departure date the Father shall provide to the Mother:

    (a)Copies of prepaid return tickets for the Child;

    (b)A general itinerary of the proposed journey including  the date time and place of the Child's departure from Australia and arrival in the nominated country/countries;

    (c)The date, time and place of the Child’s anticipated return to Australia;

    (d)Telephone contact details; and

    (e)Copy of adequate travel and medical insurance. 

19. That the Father be permitted to renew the Child's passport when required and the requirement for the Mother's consent be dispensed with and the Father have sole parental responsibility for the purpose of renewing the Child's passport

20. That pursuant to Part 15 Rule 9 of the Federal Circuit Court Rules 2001, Dr C, be appointed as a single expert to prepare an updated psychiatric assessment of the Mother and prepare a written report as to:

    (a)Relevant history (including relevant medical history);

    (b)Psychiatric, psychological and emotional health and functioning;

    (c)Any relevant diagnosis or description of her personality, presentation or functioning;

    (d)If appropriate, suggested treatment or management, and the likely prognosis;

    (e)Any incidents of her functioning that may be relevant to her capacity to parent and meet the needs of the Child; and

    (f)Any other issues considered relevant by Dr C

21. That the Mother shall attend all appointments as requested by Dr C.

22. That the Father shall pay the costs of the updated psychiatric report.

23. That the updated psychiatric report be released and filed with the Court by 20 December 2019, if possible.

24. That pursuant to section 62G of the Family Law Act 1975 the parties and the child [X] born … 2009 attend upon a Family Consultant after the release of the updated psychiatric report as directed by the Manager Child Dispute Services on a date and time to be advised for the purposes of preparation of a limited family report.

25. That the family report writer is requested to:

    (a)Assess the Child’s wishes should he express any; and

    (b)Consider future spending time with arrangements for the Child with the Mother.

26. That the family report writer has leave to inspect all documents produced under subpoena.

27. That the Federal Circuit Court of Australia be responsible for payment of the cost of preparation of the limited family report.

28. That the report be released by 15 February 2020, if possible.

29. That until further order the parties have liberty apply upon giving the other 7 days written notice.

30. That the matter be adjourned part heard in the Federal Circuit Court of Australia at Brisbane for final hearing as to the Child’s time with the Mother.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 9414 of 2014

MR ROSADO

Applicant

And

MS ASHCRAFT

Respondent

REASONS FOR JUDGMENT

Introduction

1. I am asked to make parenting orders in relation to a nine year old boy, [X].  His father, Mr Rosado, filed an Initiating Application on 5 February 2018 seeking the discharge of previous parenting orders made 11 November 2015 and in their place orders for him to have sole parental responsibility for the child, an order for [X] to live with him and spend supervised time with his mother, Ms Ashcraft. The mother did not file a Response nor comply with the directions for filing her trial documents.  At the hearing, however, she informed the court that she sought orders for equal shared parental responsibility and would like ultimately for the child to live with the parents in an equal time arrangement.  She acknowledged that as that was unlikely at this point in time she would like to be free of the restriction of supervised time that was imposed by interim orders made 13 February 2018.

2. The significant issues in this case were the ability of the parents to work together to co-parent the child and the impact on the mother’s capacity to safely parent the child in the context of her history of compromised mental health.

Evidence

1. In support of his case, the father relied on:

   a)His Initiating Application filed 5 February 2018;

   b)His Notice of Risk filed 5 February 2018;

   c)His affidavit filed 20 December 2018;

   d)The affidavit of Ms D filed 20 December 2018;

   e)The affidavits of Dr C filed:

   i)26 June 2018; and

   ii)56 October 2015.

2. Although the mother did not file a Response, Notice of Risk or affidavit in accordance with previous directions I granted leave for her to rely on her affidavit filed 9 January 2019.  The father did not oppose the granting of this leave.

3. A number of documents were also tendered into evidence.[1]

   [1]

4. Both parents gave evidence and were cross examined.  The father’s partner and Dr C were also cross-examined.  The father was an honest and forthright witnesses.  I had no difficulty in accepting his evidence.  The mother impressed as a witness who aimed to give her evidence honestly but was at times motivated by a desire to present herself in the best light.  She also had difficulties in recalling events particularly around her hospitalisations.  I formed the view that despite an intention to give her evidence honestly she was not always a good historian and where her evidence differed from the father’s evidence I preferred his.

5. Throughout these reasons I will refer to a number of facts.  Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.

6. The father is 57 years of age and the mother is 45. They met in 2006 and commenced to live together in a relationship in … 2007.  They remained living together until February 2008 but continued their relationship whilst living in different homes.  [X] was born on … 2009.  The parents separated on a final basis in July 2011.

7. The father has an adult child from a previous relationship, Ms E who is 27 years of age. The mother has two adult children from a previous relationship, Ms F who in 27 and Mr G who is 20.  Ms F has a daughter, [H] who is six years of age. 

8. In … 2011 the father formed a relationship with Ms D.  They have remained together and live in Suburb J and together operate a business at Suburb K.

9. The mother, who does not currently have a partner, lives in a housing commission home in Suburb L, she has lived there for 10 years.  She is currently unemployed and in receipt of the Newstart Allowance.  The mother’s relationships with her parents and adult children have broken down and apart from some friends she has very little social support.   She has experienced periods of compromised mental health since at least 2006 which has led to hospital admissions on a number of occasions and in particular in 2015, 2016 and 2017/18.

10. The mother had until 2018 been the child’s primary carer.  Following separation in 2011 he lived with the mother and spent six nights per fortnight with the father.  This informal arrangement continued by agreement between the parties until 2014.  In June of that year the maternal grandmother informed the father that the mother was intending to relocate to Town M, Victoria with [X] and Mr G.  The father subsequently withheld [X] leading to the mother commencing the parties’ first proceedings in October 2014.

11. The dispute proceeded to trial before Judge Demack.  Although the parents agreed to an order for equal shared parental responsibility, orders were made by the court for the child to live with the mother and spend time with the father after school Thursday to before school Wednesday each alternate week.  An order was also made requiring the child’s contact with Ms F (maternal sister) and Ms N (maternal grandmother) to be with the Mother’s consent and as otherwise agreed.[2]  The mother’s mental health was raised as an issue by the father during those proceedings. 

    [2] Order 41 of Orders made 11 November 2015

12. Those orders continued until late 2017.  On 8 December 2017, being the last Friday of Term 4, the father was to collect the child from school for the first week of the school holiday period.  Beginning at 5:58am that day the father began to receive a number of illogical and nonsensical text messages from the mother.  He received approximately twenty text messages throughout the day.  Three of the messages read:

    a)At 5:58am:

    “Morning husband xx I’m awake Mr and ur mancave dictated I was meant to have day off work today.  Se I do hate you sometimes.  I AM HAVING TO STILL WORK!  Nit happy Jan..[X] ius now sick..vomit. no fair he is home sick…”

    b)At 6:04am:

    “Ur lucky I have no working TARDIS I would.go get Ms E and ur girls drive girls drive Ms E here and u come home babysitting brain tumour boy! :p lucky I love you and yes I WILL use that card because you have got the babies with you hahah u stoly my babies L …’s boys aka ‘my property’ u saw up coast wen u work L not me L omg [X] throw up third time L he handling like a man xx”

    c)At 8:30am:

    “I have put your son to sleep earlier listening to Bible bashing stories for kids on YouTube.  You made a Booboo as a parent guess what daddy you forgot to get white but ties you had that job not me if you ever what to toak about that I’m sending him to you because you can get done I have a jet get our of jail free card and I think you do too you are baptised under the Catholic Church oh crap the road to recovery leaves you back to your roots and your religion that sucks because I’m a Catholic.  And one thing that Catholics worry about is that we’re going to be boring like everybody else because we dominate and rule”

13. The father replied to the mother and sought to collect [X] at 2:30pm that afternoon however she insisted it be at 5:00pm.  At 4:00pm the father received the following text message:

    “Can u maybe come for [X] asap…I have no choice but to go where … needs me to on brave front…a frog is dying Mr Rosado…I can’t stop it from dying..damn life…I’m sorry to ask any chance u wud maybe save us and watch dog. … cant, goes wrong then cops want be give everyone details no choice. Sry I don’t know know wen im coming back…”

14. The father then collected [X] from the mother’s home. Later that day he received a call from the Hospital.  He was advised that the mother had been admitted and was requested to provide information on her medical and drug history which he did.  The nature of the mother’s admission was not disclosed to him. 

15. Pursuant to the operative orders the father was due to return the child to the mother on 15 December but received a message from the mother asking him to return [X] the following day.  When he did so the mother was not home and the father was met by Mr O who lived around the corner from the mother but would stay at her house from time to time.  The father sent a text to the mother and received the following reply:

    “Leave [X] with Mr O, I’m just at the shops with … and I’ll be home in about 15 minutes”.

16. In light of this message the father left [X] with Mr O at the mother’s residence. 

17. The following day the father received a call from the maternal grandfather who inquired whether [X] was in his care as he had been informed by the mother that she had attempted suicide. Realising that the mother had been texting him from hospital he returned to her home to collect the child.  Mr O refused to hand [X] over resulting in an incident between the two men.  The father contacted the police and subsequently left with [X].

18. After having spent approximately six weeks in hospital the mother was discharged on 22 January 2018.  The father received a phone call from the mother that day.  She asked to see [X].  The father said to her:

    “I have some concerns.  I don’t think it is a good idea just yet resuming your time because I don’t have any information about your admission.  You kept me on a no contact list.  You don’t tell me anything.”

19. Two days later the father received the following text messages from the mother during the early hours of the morning:

    a)At 3.58am:

    “I can’t have white ([X]) back in regular care because the days are too erratic for me with my sleep.  And there’s no food in the house :(“

    b)At 4.11am:

    “I’m not in a psychic episode ... not one that would be labelled as such .. the excessive text are being sent to you.  Sorry I’m very sorry …isn’t well enough to cope, he in hospital cause tumor :(“

    c)At 4.42am:

    “Dropping [X] in the morning he’s also an alternative.”

    d)At 8.46pm:

    “Wednesday in each week, is wits me.  So I will be picking [X] up from school just for hour or two .. u let me know easier for you with traffic ……. This will happen tomorrow, Wednesday.  Not Thursday tho.”

20. These messages caused the father to be concerned as to the child’s time with the mother.  He through his solicitors wrote to the mother requesting her to not collect the child from school on 24 January and proposed that the child spend supervised time with her between 4pm and 5pm at a local park.  The mother did not respond to that correspondence.  Two days later the mother sent a text message to the father indicating that she would be picking the child up from school on the Monday to spend a couple of hours with him.

21. On Saturday, 27 January 2018 the father received a text message from the mother advising him that she had a medical condition called akathisia.

22. When the father attended the child’s school on 29 January he saw the mother there.  She told him that she was going to collect the child.  He told her that he did not agree with her doing so and that the time needed to be supervised.  The mother’s voice was elevated and she presented to the father as being agitated.  The father was concerned to avoid an altercation in front of [X].  He let the mother take the child from the school and collected him from the mother’s home at 4:45pm.  When he arrived at the mother’s home he observed it to be in a state of disarray with rubbish strewn over the lawn and the front landing having rubbish including paper, empty bottles, and empty packets of food all over it.  He also saw the mother’s dog to have an eye infection full of pus.  He became concerned about the child living or spending time with the mother because of a lack of hygiene and cleanliness.

1. On 13 February 2018 orders were made on an interim basis for the child to live with the father and spend supervised time with the mother through LifeCare Consultancy.  The father was to pay for the supervision which soon proved too expensive for him and further orders were made on 26 April 2018 for the supervision to move to Uniting Care in Suburb A.  The supervision has continued at this centre.

2. The mother’s mental health was a factor considered in the 2015 trial and a single expert’s report was prepared by psychiatrist, Dr C.  I will refer to this report as the 2015 report.  He noted that the mother had been admitted to the Suburb A Hospital in … 2006 for a failed suicide attempt and that there had been a further admission to the Hospital in … 2008 presenting with psychotic, delusional, grandiose, passivity, and elevated features.  He concluded that there was no doubt that the mother had suffered from a severe state of mental dysfunction in 2008 which had responded well to treatment between 2009 and 2010.  He was of the view that the mother’s condition was a drug induced psychosis.  The mother has a history of cannabis use and polysubstance use including Ecstasy and Acid.  After his assessment of the mother in January 2015 he concluded: 

   There is no history and no abnormality on mental state examination now which would support the notion that Ms Ashcraft presents now with a mental disorder or mental illness or psychiatric disorder which could impair parenting functioning.

   She is not assessed as being at a significantly increased risk of self-harm at present.

   She does not have any current active psychiatric issues which increase the risk of her not being able to parent the child to a satisfactory standard.

   She is not diagnosed with psychiatric issues which result in an increased risk of her not providing the child with adequate emotional and psychological support.

   There are no psychiatric issues which result in an increased risk of Ms Ashcraft perpetrating neglectful behaviour towards the child. 

3. After seeing the mother again in April 2018 for the purposes of preparing a report for these proceedings, he came to the following opinion:

   There is no doubt that Ms Ashcraft suffers from a psychiatric diagnosis. 

   She has a 10 year history of psychiatric issues stemming from an admission in 2008.  

   This condition is call Bipolar Disorder. 

   This means Ms Ashcraft can suffer severe mood swings. Her mood can become high or elevated.  Her mood can become very low or depressed. Such changes in mood can occur within, minutes, or hours or slowly change over days.  They are therefore very unpredictable.  Mood swings up and down can follow each other or go up and down unpredictably. 

   When the mood is up or down thinking alters and can become odd and variably irrational. 

   Behaviour changes can then follow. 

   Ms Ashcraft may or may not recognise that these changes in mood and thinking and behaviour are occurring. 

   This is because insight and self-awareness may be impaired by Bipolar Disorder.

   Therefore Ms Ashcraft may not have any control over the onset of the mood swings or any control over her awareness that she is becoming unwell.

   She is being treated with appropriate medication for this condition now.

   …

   Ms Ashcraft is prone to severe attacks of altered mental state functioning, which have been recurrent over a 10 year period. 

   During such attacks she in vulnerable, unable to care for herself, unable to care for her son, and in urgent need of emergency paramedic, medical and psychiatric assistance.

   Her history indicates that she in not able to know that an attack of altered mental state functioning is starting.

   …

   I would not support any change of review in this supervised contact until 12 months have passed, during which time supervision reports have been very satisfactory (and therefore Ms Ashcraft’s mental state has been stable).

   Episodes of mental issues if they recur, result in the immediate cessation of supervised contact.

   I would strongly suggest a review at an independent medical examination in 12 months’ time review [1] the stability of Ms Ashcraft’s mental illness [2] her insight into the need for long term management of it [3] her compliance with management [4] any forensic issues that might have arisen in that time frame [4](sic)  the outcome and written reports of supervised contact visits. 

   Ms Ashcraft needs weekly or second weekly contact with a mental health worker from the Queensland Health Mental Health Service.

   She needs regular injections of antipsychotic mood stabilising medication, a drug that must continue indefinitely, as there is no cure for the mental illness from which she suffers.

   It can be managed and controlled but not cured.

   …

   She must not use any illicit drug ever again.

   The fact that Ms Ashcraft presented with the history of psychiatric illness as existed from 2008-2015, was assessed as outlined in the medicolegal report I prepared dated 05 June 2015 and now presents with the psychiatric issue which mark 2015, 2016, 2017 and 2018 is not a good prognostic sign.

4. In her trial affidavit the mother gave evidence of accepting she has bipolar disorder which she described as a lifelong condition.  She said that she has taken on board what Dr C has said about the impact of any drug including the use of cannabis on her mental health.  She said that she had not smoked cannabis since January 2018 nor had she taken any harder drugs.   Her evidence was that she has maintained a relationship with her treating team and sees a case worker every two weeks as well as seeing a psychiatrist regularly.  She also receives support through the National Disability Insurance Scheme (“NDIS”).  Her medication includes a 300mg Abilify injection monthly and 1400mg of sodium valproate daily.  She said that the side effects of her treatment have been well managed by benzotropine which she takes for her movement disorder, akathisia.

5. Whilst the mother showed some insight into her condition she appeared to minimise the effect her presentation may have on the child when her health is compromised.  In cross-examination she said that on one occasion when she had been painting messages and pictures on the walls of her home and had been speaking in disorganised thought patterns to her aunt on the phone, that [X] would not have been concerned but would have viewed her behaviour as “Mummy’s doing fun stuff with craft”.  She had no answer to the proposition that he would have been worried about her.

6. In cross-examination Dr C indicated that he had read the subpoenaed material since the preparation of the report and confirmed his view that there needed to be a further review as to the mother’s ability to maintain positive mental health.  Although aware that the mother was receiving support through the NDIS and Partners in Recovery, he was concerned that a lack of social support increased the risk of relapse in the mother’s psychiatric illness.  This was particularly so given the mother’s chronic use of cannabis.  Dr C gave evidence that without social supports, a sufferer of bipolar disorder wouldn’t have the stimulation or enjoyment of social interactions, and could ultimately become more and more socially isolated, alone with their thoughts, cut off from the world, and at risk of using cannabis to pass the time leading to a deterioration of health and then not having any awareness that they’re becoming unwell.  Without anyone to check on their health there is a serious risk of depression and potential for suicidal thinking and/or behaviour. 

7. He was also concerned that the mother in the past has taken more medication than had been prescribed based on her own self-diagnosis.  He indicated that taking medication because you think it might be a good idea when you have this history is definitely contraindicated.  He noted the mother had also decided not to take her mood stabilising medication, the valproate, without prior consultation with her treating doctor.

8. The mother has been receiving injections of Abilify.  Dr C expressed the view that the regular injections alone would not be sufficient to ensure stability in the mother’s mental health.  He said that the treatment needed to be threefold.  Any management would need to address biological or chemical treatment, psychological treatment, and social treatment.

9. Dr C accepted the proposition put to him by Queens Council for the father that the mother has given inconsistent histories to professionals about her use of cannabis and in recent times has been filtering what she tells her psychiatrist in order to minimise anything that may impinge on her ability to spend time with the child.  He said:

   The court will need to consider the credibility of the truth and openness and completeness of the history from the mother with respect to those matters, because on the one hand she wants to be well but on the other hand she wants to paint herself in the best positive light, which may be more positive than she really is.

10. I respectfully accept the caution and advice by Dr C as my observations of the mother’s evidence has led me to a similar conclusion.

11. Notwithstanding that caveat by Dr C he said that when the mother is well, there is no risk to effective, safe, stable parenting from a psychiatric diagnosis.  The difficulty arises when she becomes unwell and the descent can be very rapid.  He said that if the child was with her during a rapid deterioration of the illness there could be behaviours which are errors of omission such as a lack of awareness or supervision or the capacity to monitor the child’s safety.  There could also be errors of commission such as strange behaviours or behaviours scary to the child and indeed there could be potential for physical behaviours which threaten the child’s safety and well-being.  He said these risks could be ameliorated by appropriate qualified supervisors in a supervision environment.

12. During cross-examination the mother asked Dr C if she had been out of hospital for 13 months and stable on her medication and being treated for akathisia would it be likely that her moods would swing within minutes or hours.  He said the risk of such a relapse of the underlying condition would be very low and, therefore, unlikely to occur especially if other circumstances or life stressors were not an aggravating feature.  He went on to say that he was not able, nor did he think anyone else would be able, to accurately know, if there is another relapse in the future, how quickly it will occur.  He wanted to stress that the court needed to be aware that these sorts of things can come on very quickly.

13. He recommended a review in the latter part of 2019 to ascertain the extent of stability in the mother’s mental health and her ability to maintain her treatment plan.  He remained concerned as to her ability to not use cannabis.  He said that it would be beneficial to know from the mother’s psychiatrist and other members of her treating team the extent of their understanding of the mother’s use of cannabis.  Urine screens along with counselling and support would be beneficial in monitoring the mother’s adherence to abstaining from illicit substance use.  During his evidence I asked Dr C if it would be prudent that the review take place before any change in the current spending time with arrangements between child and mother.  He did not accept that proposition.

Legal Principles

1. All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975.  In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[3] and must consider the best interests of the child as the paramount consideration.[4] 

   [3] S.60B

   [4] S.60CA

2. Whilst that is the paramount consideration it is not the only consideration.  In AMS and AIF his Honour Justice Kirby held: [5]

   [144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents.  If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights.  However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.

   [5] (1999) 199 CLR 160 at page 207; 24 Fam LR 756 at page 792

3. In determining what is in a child’s best interests the court must consider the matters set out in s.60CC.

4. The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[6] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:

   a)Children have a right to know and be cared for by both their parents;

   b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;

   c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   d)Parents should agree about the future parenting of their children; and

   e)Children have a right to enjoy their culture.

   [6] S.60B lists the objects and principles for Pt VII.

5. The legislative framework which must be followed in all parenting cases,[7] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[8]  This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[9]

   [7] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

   [8] S.61DA

   [9] S.61DA(2) & (4)

6. For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[10]  Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[11]  When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[12]  A major long-term issue in relation to a child means an issue:

   [10] S.61B

   [11] S.61C

   [12] S.65DAC

   about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a) the child’s education (both current and future); and

   (b) the child’s religious and cultural upbringing; and

   (c) the child’s health; and

   (d) the child’s name; and

   (e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[13]

   [13] S.4

7. In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents.  In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[14]  If the court finds that equal time is not in the child’s best interests or  that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[15]

   [14] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4

   [15] S.65DAA(2)(c) & (d)

Determining the best interests of the children – the s.60CC considerations

1. The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors.

The child’s relationships[16]

[16] S.60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.

1. There is no doubt that this young boy enjoys a close and loving relationship with both his parents.  Although the mother has been his primary carer for the majority of his life, the father has been there when the mother’s health has not been good.  He will benefit by a continuation of his relationships with each of them.

2. The mother believes that the father will not promote her relationship with the child.  That belief is honestly held but has been influenced by the adult relationship.  Her belief is misplaced.  I accept the evidence of both the father and Ms D that they speak positively of the mother to the child and are supportive of him having a good relationship with her, provided he is shielded from any negative aspects of her mental health issues.  The father is protective.  He has paid significant sums towards the supervision arrangements and the obtaining of the necessary psychiatric report for these proceedings.  In doing so he has been child focused on ensuring that the mother/son relationship is not only maintained but enhanced in a safe environment.  His desire to see a continuation of the supervision is informed by his reading of the report of Dr C and his experience with the mother including her deception in not telling him she was still in hospital in 2018 when he returned [X].  He lacks trust in the mother and is not confident that she will inform him if her health deteriorates until things get really bad.  I find that his motivation is purely that of a protective parent.

3. Continuing supervision long term however may lead to negative perceptions in the mind of the child that he should fear his mother.  Dr C was clear in his evidence that when the mother is well she is able to fulfil all of her parental responsibilities.  When she is well there would be no need for supervision save for the concern that her health may deteriorate quickly.  I will address this below.

4. The child also has a close relationship with the father’s partner, Ms D which would be maintained by him continuing to live with his father.  The child is not currently able to spend any time with his maternal sister or his maternal grandmother and is therefore not developing those relationships.  I will address this later in the judgment.

Risk of harm[17]

[17] 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

1. As part of its primary considerations the court is required to consider the need to protect a child from physical or psychological harm from being subjected to, or expose to, abuse, neglect or family violence.  In doing so it must give greater weight to this consideration than to the benefit of a child having a meaningful relationship with a parent.  There is no evidence of any such risk of harm issues for this child whilst living with the father.  The evidence would suggest that when the mother is well this child is not at risk of harm in her care.  However, when she is not well there is a risk that she would not be able to properly care for him such that he may be exposed to neglect or lack of supervision.  He would also be exposed to the mother’s behaviour which raises the real potential for psychological harm and possibly physical harm.  It is this risk factor that has motivated the father’s application for the mother’s time to be supervised.

2. Although the mother had been out of hospital for a period of some 11 months at the time of the hearing, there remained in the father’s mind a number of doubts as to the extent of the stability of her condition.  She had been in hospital in 2015, 2016 and 2017/18.  His Queen’s Counsel argued that a longer period than 12 months would be needed before the court could have confidence that the mother has been able to sustain good health.  According to Dr C the mother’s illness has the potential to compromise her health at very short notice.  This adds to the father’s concern.  A significant influence on the mother’s health has been her use of cannabis. Although she gave evidence of not having used cannabis since February 2018 she did not supply any drug screens to corroborate her abstinence from its use.  It is not surprising the father remains concerned.

1. Although the mother has supports through NDIS and other agencies, the funding, at time of trial, was due to expire in June of this year. 

2. When I take into account these matters I am satisfied, at this point in time, that there are real risk of harm issues for this child in the mother’s care such that a cautious approach to his time with her needs to be adopted.  I will address this later in this judgment.

The child’s views[18]

[18] S.60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.

1. I have no independent evidence of the child’s views given the matter proceeded without a family report.  Although it is important for a court to have evidence of a child’s wishes, in this particular case I am satisfied that it is appropriate to proceed without such evidence.  For reasons that I will address below, I have come to the conclusion that it is in the child’s best interests for orders in relation to the mother’s time to be made on an interim basis and to reconsider those orders after an updated psychiatric report is prepared.  I propose to also order a limited issues family report which will include an assessment of the child’s wishes.

Practical difficulties[19]

[19] S.60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

1. Although the parties live in the same city, they are some distance apart.  The child has been seeing the mother in a supervised setting in Suburb A for two hours each week.  This has had cost implications for the father who has been paying for the supervision but has also meant both parents have had to travel some distance to facilitate the time.  The mother argued that uplifting the requirement for supervision would overcome these burdens.  Whilst she is correct, this consideration must give way to the greater need to protect the child from any risk of harm issues.

Parental capacity and responsibility[20]

[20] S.60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.

1. I have addressed factors particularly the mother’s capacity to care for the child in my earlier consideration of the risk of harm issues.  It is important not to lose sight of the fact that when the mother’s health is good she has the capacity to meet the child’s needs.  Having said that, the risk of harm issues must always be given greater weight.  There is no issue as to the father’s capacity to provide for the child’s needs.

Presumption of Equal Shared Parental Responsibility

1. In 2015 the parties consented to an order for them to equally share parental responsibility for the child.  Notwithstanding that order, and noting that the presumption of equal shared parental responsibility applies, the father has argued that I should make an order for sole parental responsibility.  The mother opposes that part of the father’s application.  Ideally a child benefits from having both parents constructively working together in making the important decisions in his or her life.  However in this case, I am satisfied that the parties have demonstrated an inability to make joint decisions in relation to the important long-term issues.  This was particularly evident in relation to their dispute as to which school the child should attend.  It was necessary for me to make an order in that regard because they were simply unable to reach an agreement.  The parents lack trust in each other and are not always able to communicate effectively.  This is particularly the case when the mother is unwell.

2. The mother’s relationship with her other children is currently compromised and she is fearful of losing her relationship with [X].  Being excluded from decision-making will add to her sense of loss.  Whilst I recognise this, it is the child’s best interests that I must consider.  His interests will not be served by ongoing disputes between the parents with the potential for further litigation.

3. Given I propose to make an order for the child to live primarily with the father, for the reasons that I have set out in this section, I have concluded that an order for the father to have sole parental responsibility is in this child’s best interests.  So as to not exclude the mother entirely I propose to make orders requiring the father to consult with her before making any final decision.

Discussion

1. Having found that it is in the child’s best interest for the father to have sole parental responsibility I am not required to consider whether it would be in the child’s best interests to spend equal time or substantial and significant time with the mother.  The father maintained that the mother’s time needs to be supervised arguing that there is a real risk, an unacceptable risk, that the child would be harmed if the mother’s health deteriorated.  It was argued that the mother is not always able to self assess her slide into ill-health and historically has not notified the father until her health is quite bad.  In light of Dr C’s evidence that the mother’s health can deteriorate in a matter of hours there is much validity in the father’s argument.

2. Having said that, the evidence is clear that when the mother is well she is able to care for and meet the child’s needs without supervision.  The mother in her argument, highlighted Dr C’s evidence that there should be a review after 12 months which, given his report is dated 13 June 2018, means that review should be conducted now.  In his oral evidence Dr C did suggest that it might be possible to progress the mother’s time before any review but the overall thrust of his evidence was to adopt a guarded and conservative approach.  He was particularly concerned that the mother is able to completely abstain from using cannabis and is able to maintain good health over a significant period of time.

3. Although Dr C indicated a 12 month period would be indicative of stability he did recognise that she has experienced compromised health almost on a yearly basis since 2015.  He considered that this was not a good prognostic sign into the future.  The father stressed this very issue.

4. When taking into account the evidence of Dr C I am satisfied that there needs to be a continuation of a conservative approach but that there also needs to be a movement forward so that in the event that the mother has been able to maintain consistent good health, this child would be able to eventually transition to having all of his time with the mother unsupervised.  Given a significant issue in relation to the mother’s health has been her use of cannabis, it is important for her to produce evidence of her ability to abstain from its use.  If the mother is able to produce two drug screens indicating that she has not been using illicit substances and can provide a report from her general practitioner as to her consistent attendance for the injections of Abilify and is otherwise receptive to professional supports, the risk of her health deteriorating rapidly would be minimised and it would be appropriate to have every second period of time progress to an unsupervised format. 

5. In this way there would still be supervision once a fortnight which would maintain the protective measure but would also enable each of the parties to obtain records of the mother’s presentation at the periods of time.  In the other week I would propose that the child spend time with the mother either in the city or at Suburb B so that [X] is able to enjoy a different environment with his mother.  However given Dr C’s evidence that the mother’s health can deteriorate rapidly, this period of time needs to be limited in time until a further psychiatric assessment can be conducted.  It should be of no more than 2 hours duration.

6. The updated psychiatric assessment should occur in six month’s time which would allow for an almost two-year period since the mother’s 2017/18 hospitalisation.  A limited issues family report would also be of assistance in determining what would be the appropriate spending time with arrangements going forward.  This report should occur after the release of the psychiatric assessment and be limited to the child’s wishes and future spending time with arrangements.

7. I have accepted the submission by Queen’s Council for the father that the only aspects to be adjourned for a later day should be the longer term spending time with arrangements.  It is in this child’s best interests to make final orders in relation to all other issues.

8. One issue that the parties were unable to reach agreement on was whether Order (41) of the orders made on 11 November 2015 should be discharged.  That order provided that any time the child was to spend with the mother’s daughter Ms F and the maternal grandmother, Ms N, would need to be with the mother’s consent and as agreed between the parents.  To date the mother’s consent has not been forthcoming.

9. The father would like [X] to know and spend time with his maternal family members especially Ms F’s daughter [H] who is six years old.  [X] and [H] have a relationship but because of the orders made in 2015 facilitating time together has been made difficult.  The mother remains opposed to [H] spending any time or coming into contact with her mother and Ms F.  She is worried that they will compromise her relationship with him.  I accept that this fear is genuinely held by the mother.  I also accept that the father will do all things necessary to ensure that [X] is not exposed to any negative comments about the mother.  It is in the child’s best interests to spend time with extended family members and for that reason I am satisfied that it is appropriate to discharge the order.

10. Taking into account the reasons set out above, I am satisfied that it is in this child’s best interests to make final orders for him to live with the father and for the father to have sole parental responsibility but to make interim orders for the child to spend time with the mother and to review those orders in the first quarter of 2020.  Accordingly I will make the orders set out at the commencement of this judgment.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Date: 6 June 2019

Exhibit F1       Documents produced by Medical Centre
Exhibit F2       Documents produced by Hospital (2017 incidence)
Exhibit F3       Documents produced by QLD Police Service
Exhibit F4       Documents produced from Medical Practice
Exhibit F5       Documents produced by Medical Centre
Exhibit F6       Documents produced by State School
Exhibit F7        Documents produced by from Hospital (2018 Out Patient)
Exhibit F8       Child’s school report semester 1 and 2 of 2018
Exhibit M1      Documents produced by Uniting Care – Child Contact Service
Exhibit F9       Email dated 14 January 2019 at 16:16 from father’s solicitor to the mother
Exhibit F10      Bundle of correspondence from Father’s legal representative and Dr P
Exhibit F11      Letter dated 14 January 2019 from Rice Naughton McCarthy to father
Exhibit F12      Paragraphs 27, 28 and 29 of the Family Report dated 10 April 2015
Exhibit F13      NDIS document
Exhibit F14      Partners in Recovery Service Agreement

S.60CC(3)(b): The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child).
S.60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.
S.60CC(3)(d): The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.S.60CC(3)(j): Any family violence involving the child or a member of the child’s family.
S.60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: i) The nature of the order; ii) The circumstances in which the order was made; iii) Any evidence admitted in proceedings for the order; iv) Any findings made by the court in, or in proceedings for, the order; v) Any other relevant matter.S.60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.S.60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
S.60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents