Saget and Samol

[2019] FamCA 858

FAMILY COURT OF AUSTRALIA

SAGET & SAMOL [2019] FamCA 858

FAMILY LAW – CHILDREN – orders made for the child to live with the maternal grandparents and the maternal grandparents to have sole parental responsibility.

Family Law Act 1975 (Cth) ss.60B, 60CC, 61DA, 65DAA

Goode & Goode (2006) FLC 93-286

APPLICANTS: Mr Saget and Ms Saget

RESPONDENT: Ms A Saget

FILE NUMBER: BRC 11896 of 2016

DATE DELIVERED: 22 October 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 22 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Feeney Family Law

THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms C Dart

INDEPENDENT CHILDREN’S LAWYER: Mr P Dooley
Dooley Solicitors

Orders

1. That all prior parenting Orders be discharged.

2. That the child, X born … 2009 (“the child”) shall live with the Applicants.

3. That the Applicants have sole parental responsibility for the child.

Child’s time with his mother

1. That subject to the terms of Order 5 hereof being complied with, the child shall spend time with the mother at all reasonable times as agreed between the parties, with such time to be supervised by:

   (a)a person agreed between the parties; and

   (b)failing agreement, by a professional supervision service nominated by the Applicants.

2. That prior to time occurring pursuant to Order 4 hereof, the mother is to provide a short report from her treating health care professional confirming that:

   (a)the mother is compliant with her mental health treatment;

   (b)the mother’s mental health condition is stable; and

   (c)the mother does not pose a risk to the child.

3. That the mother is restrained and injuncted from:

   (a)attending the child’s school; and

   (b)speaking to or communicating with the child’s teacher.

4. That the child shall not be physically disciplined.

Passport and international travel

1. That pursuant to s 11(1)(b) of Australian Passport Act 2005, the child, X born in 2009 is permitted to travel internationally.

2. That pursuant to ss 7, 11(1)(b) and 11(5)(b) of the Australian Passports Act 2005, at the time the child’s passport expires and a fresh application is made by the Applicants for a new passport for the child, the child can be issued with an Australian passport, notwithstanding the fact that the consent of the parents for the issue of the passport for the child has not been obtained.

Other

1. That the Applicants have liberty pursuant to s 121 of the Family Law Act 1975 (as amended) to publish this Order and the Affidavit of Dr C filed 14 March 2018, to any Police Officer or Child Welfare or Child Protection Agency investigating any complaint by the Respondent mother as to the Applicants’ capacity to care for the child.

2. That the Applicants have liberty pursuant to s 121 of the Family Law Act 1975 (as amended) to publish this Order to the child’s school.

3. That the parties have liberty to provide the Affidavit of Dr C filed on 14 March 2018 to Queensland Health.

4. That the Independent Children’s Lawyer be discharged.

IT IS NOTED:

A.That the Independent Children’s Lawyer would not be opposed to the maternal uncle, Mr B or maternal great-aunt Ms Samol being supervisors of the child’s time with his mother.

B.That all Orders contained herein were consented to by the Applicants and the Independent Children’s Lawyer.

C.That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saget & Samol has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11896 of 2016

Mr Saget and Ms Saget

Applicant

And

Ms A Saget

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. It is a very difficult family dynamic when an adult child suffers mental health challenges and has responsibilities to a child themselves.  In this case, the mother, Ms A Saget, as I will set out briefly, has sadly, significant and severe mental health challenges.  Notwithstanding those challenges, she gave birth to a little boy called X in 2009.  Seemingly without any assistance by the biological father (who has not been actually identified in any Court document or on the birth certificate) she did her very best to manage the care of X, no doubt with support from her parents and others in the community, as long as she could.

2. By way of background, the mother is now 36 years of age.  Her parents, Mr Saget and Ms Saget, are aged 65 years and 60 years respectively.  There has been a history of the mother’s admission to mental health facilities which I will deal with shortly, but in any event, what occurred on or about 27 October 2016 was that the police had intervened and required the mother, pursuant to a justice examination order, to be involuntarily hospitalised at the City H Hospital.  Subsequently thereto and quickly, it must be acknowledged the grandparents (as I shall now describe as Mr Saget and Ms Saget) commenced proceedings in the Federal Circuit Court of Australia on or about 25 November 2016.  Judge Lapthorn of that Court, on 14 December 2016, made orders that X live with the maternal grandparents and that they have sole parental responsibility.  There was provision made for supervised time with the mother and the appointment of an Independent Children’s Lawyer (“ICL”).  As would be appropriate, the mother was directed to file material to provide her side of the story.  Sadly, despite directions, the mother did not actually file any material in this Court until her Response dated 31 August 2018.  At that stage, it appears she was living in Town J.  The Response and the short Affidavit in support is of limited assistance, save to acknowledge that the mother sought the following orders on a final basis:

   “1.      That the Applicants comply with the Family Court Orders made in 2016.

   2.        That I have unsupervised phone contact with my son every Wednesday and Sunday.

   3.        That I have visits with my son 2 times a year supervised by Mr D.”

3. Accepting that the mother was unrepresented and may not have been in a position to articulate more fully the application she sought, I do take on board the fact that even at that stage, the mother did not seek in her Response that the parenting arrangements set in place for X be changed, namely, she did not seek that X live with her or that she have parental responsibility.  That might, perhaps generously to her, reflect some form of insight.  That application – in fact cross-application by the mother - should also be seen in the context of a serious allegation she sought to raise with Queensland Police in July 2016 and for the first time.

4. The allegation, described by the Police as vague, uncorroborated and ultimately without properly setting out a foundation for any action or prosecution, were of a serious nature asserting that her father had sexually assaulted her when she was about five years of age, some 30 years earlier.  Dr C, the independent Psychiatric Consultant retained by the ICL in this case, refers to that allegation by the mother and opined that it could well have been a further example of the mother’s delusional thought processes.

5. The mother has failed to comply with direction of the Court and despite having the opportunity, when this matter was listed for trial by me in June 2019, to present her case, she failed to do so.  An explanation for her failure to be here today runs from the evidence provided by Ms Dart, Counsel for the ICL, from the Bar Table that the mother today is in involuntary care, as and from 3 October 2019, in a Brisbane mental health unit.  The ICL spoke with the mother’s Psychiatrist in that health unit, Dr E, the effect of which was that Dr E indicated to the ICL that the mother would not be in a position to be here today and would not be in a position to present any case for at least two weeks.

6. I note, however, that the mother had a chance to present her case by filing material as directed but failed to do so.  I make these observations because I have decided it is in the best interests of the child that these proceedings, as much as is possible, be finalised today.  The uncertainty of these proceedings has hung over the head of the family for nearly three years.  The grandparents have, they say, incurred legal expenses exceeding $55,000.  The mother has not complied with earlier directions although, thankfully, she did comply with a requirement to attend upon Dr C on 15 February 2018.

7. The mother did not attend family report interviews conducted by Family Consultant, Ms F, on 21 August 2019.  No explanation as to her failure to attend is offered to the Court and I am satisfied, as Ms F indicates, she attempted to contact the mother by mobile phone on 23 August 2019 but was unable to connect with her.  Properly, Ms F indicated that as the mother was not interviewed as part of the assessment, that was an acknowledged limitation to the evidence gathering exercise.  Accordingly, after hearing submissions from Ms Dart, the ICL’s counsel, and Ms Feeney, the solicitor for the Applicants, about how the matter could proceed today, I expressed a view, as the transcript would make clear, that the need for this child to have finality, as best as can be achieved, was in my view a serious consideration.

8. That is best achieved by, if possible, making orders on a final basis but knowing full well that the mother has a right, under the Family Law Rules 2004, and in any event could, enlivening the inherent powers of this Court, seek to set aside the orders made in her absence today.  To do so however, she would be required to produce evidence as to not only her failure to attend today and comply with orders but also why there is evidence available that would cause the Court to revisit the orders made today.  The order I make today will identify that if any application to set aside these orders or any variation to these orders is filed by the mother within two years from this date, that such application should be, if possible, listed before me.  I would ask the ICL to incorporate that in the order.  There are many years left for that to occur, but for the moment the orders I make that finalise these proceedings are in my view appropriate and in his best interest, and I therefore make those orders.

9. Then, appropriately, I consider whether the order agreed between the grandparents and the ICL, which I will mark now as Exhibit 3, is in the best interests of the child.

Legislative pathway

1. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

2. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

3. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

4. In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

5. Suffice to say that the best interests of X is the paramount but not only consideration and the method by which the Court is to determine the best interests of the child are set out in the legislative pathway.  In respect of the orders being made, I believe they are in the best interests of the child at this stage on the evidence, although at times untested, for the following reasons at least.

6. In making these findings, I do so noting that some of the evidence has not been tested and further, that the journey through the reasons identified do, in my view, touch the primary considerations in section 60CC(2)(a) and (b) and the additional considerations set out in section 60CC(3). I also take into account that I have a family report recommending, effectively, the orders I am making, which is important because of the requirements of the Act where a court is making a final order in respect of a “non-parent”.  The findings which I believe are appropriate to make in this case follow.

7. It would be of benefit to the child, X, to have a meaningful relationship with his mother.  However, that can only occur if the mother’s functioning does not present a risk to him.  At some future point in time, the balance which now firmly establishes that a child having time with the mother would be a risk to him, might change.  The legislation makes it clear that the need to protect the child from harm, as identified as a primary consideration under section 60CC(2)(b), must be given greater weight than the benefit to the child in having a meaningful relationship with a parent.

8. In this case, the only available parent is the mother.  The mother has a very sad mental health history.  I do not propose, in these Reasons, to deal with every part of the evidence before me other than to identify that I have read and considered the subpoenaed documents which have been tendered by the ICL from the City H Hospital (pages 8 to 18) which reveals that there has been engagement with that Hospital for some time, but most recently as early as 7 February 2019.

9. At page 18 of the tendered documents, which are Exhibit 2, it is apparent that the City H Hospital Psychiatric Registrar formed the impression that the mother had a diagnosis of paranoid schizophrenia with a baseline of some delusions, but that at that time she was assessed as having “good insight into her care and stable at current”.

10. The report notes suggest that a plan had been determined such that the mother, who had apparently some support of a university friend who she was living with named Ms K, who lived in Suburb L, a suburb of City M, that she would be discharged to City M and that the City H Hospital would contact, and had, in fact, notified the City M Mental Health to effectively be in a position to support the mother when she arrived in City M.

11. There is no evidence that the mother actually went to City M.  There is no evidence from Ms K as to the level of support she was able to offer the mother or that the mother was happy to receive from her.  From the bar table, apparently on instructions that Ms Feeney received from family members, there is some suggestion that the mother, having left City H, had further interaction with Queensland health facilities in City N, but there is no evidence of that.  As I have already indicated, we know that she has been admitted involuntarily into a mental health unit in Brisbane since on or about 3 October 2019.

12. Dr C, in his report, prepared at the cost of the ICL, and arising from interviews on 15 February 2018, sadly felt compelled to indicate very strong concerns about the mother’s functioning and the risk the mother posed to the child.  The role of the Psychiatrist on cross-section interview is very difficult.  They only get a limited opportunity to review the patient.  It is clear from the hard and thorough work undertaken by the ICL, Mr Dooley, that Dr C had a very thorough briefing of documents.

13. His report I have read, and without detailing every aspect of it, I draw in my Reasons the following concerning conclusions, for example, at paragraph 15 on page 7:

    “I have not formed a conclusion about the veracity of these claims [they being the sexual abuse claims], but strongly recommend that they can be considered by The Court, noting they could have their basis in psychotic delusional processes.

    This matter is one in which I cannot stress enough the seriousness of the risk to the child’s safety and well-being and survival, given the severity of The Mother’s psychotic illness.

    I therefore take the unusual step of absolutely precluding any unsupervised access between Mother and Child because of my concern that there is a very high risk of physical or emotional harm to the child from the Mother if he is left in her unsupervised care.

    This level of concern should be reviewed by Independent Medical Examination fully briefed with all collateral information in this case, before any changes to access are considered.”

14. That concluding opinion of Dr C has prompted me to order, as I will, that a copy of Dr C’s report be provided to Queensland Health.  The foundation for that concerning conclusion is set out in his report, but is summarised under the heading of “function”.

15. Where at paragraph 40 on page 5, Dr C says as follows:

    “Ms Saget has therefore not made a good response to treatment to date.

    From a psychiatric perspective she is not doing well.

    There is an extremely severe (worse that mild and worse than moderate and worse than severe) impairment of mental functioning from the symptoms of a psychiatric illness or mental disorder evident on examination now.

    There are very serious current active and significant diagnosable psychiatric and psychological disorders that result in a significantly increased risk of an impairment of her ability to care for the child.

    The current risk assessment for self-harm is high.

    The current risk assessment for harm to others (including the child) is high.

    I therefore strongly advise that the combination of [1] to [4] above increases the risk of The Mother not being able to parent the child to a satisfactory standard to an extremely serious level.”

16. That report, it must be noted, was in respect of interviews that occurred, as I say, in February 2018 and since then, sadly, the mother has had further hospitalisation.  There is uncertainty as to what treatment she received.  There is also uncertainty as to the level of her use of illicit substances, particularly cannabis, which appears from her history to have been a trigger for psychosis developing and being demonstrated by her.

17. The family report writer, in her report, also considered the mental health picture and at paragraphs 28 to 29 she sets out a number of child concern reports gleaned from the subpoenaed material.  I accept such an account is accurate and consistent with material otherwise before the Court, and further, at paragraphs 47 to 53, deals with the mother’s mental health functioning.

1. As I say, the report writer, Ms F, who is a Social Worker, would not have been in the position to make a diagnosis of the mother’s mental health, but she certainly was able to look at the history in view of the recommendation she ultimately made about the care arrangements for X at this stage.  It follows from the findings I have made in relation to the documentation before the Court, much of which would be difficult to challenge, even if the mother was here today, that as the evidence currently exists, the child could not have unsupervised time with the mother.

2. As I have already indicated, there is nothing on the material that suggested the mother has, in fact, even sought such an order.  In considering the additional considerations, the Court is, of course, obliged to take into account any wishes expressed by the child.  The most independent recording of the child’s current wishes can be found in the report of the Family Consultant at paragraphs 72 and 81.  Insightfully, Ms F summarised the earlier paragraphs of her report at paragraph 81 as follows:

   “His views and wishes are to remain living his maternal grandparents and spend time with his mother on his birthday.  In the 3 wishes activity, X had only one wish and that was for his mother not to be sick.”

3. It is clear that X understands that his mother has mental health challenges.  As he gets older, his capacity to understand that more will improve, noting that he has not yet reached his tenth birthday.  In the future it would be helpful for X to have some exposure to education about children dealing and understanding parents with mental health challenges.  Because one factor will never change in his life, and that is, he has only one mother who sadly is now, and possibly has been for some time, unwell.

4. It is difficult to assess the child’s relationship with the mother because of the lack of contact he has had with her over the last three years.  There is no doubt, as observed by the family report writer, that the child does have a healthy relationship with his grandparents.  Even so much that he felt confident enough to express to the report writer at times when his grandfather may have shown some impatience with him that he did not like it.

5. He did not paint a picture other than one of stability, happiness and a feeling of belonging.  It seems clear that although he has had little time with his mother, he continues to have time with the maternal uncle, who I think now lives in the Brisbane area having previously been in another part of Queensland, and there are, it seems, cousins in the relationship that his uncle has with his partner.  In all respects this is a happy extended family.

6. I should mention at this point that the grandfather is still employed full-time in a responsible position as a public servant.  The grandmother has retired as a public servant.  She brings, no doubt, to the parenting of this delightful, chatty and happy child, as Ms F described him at paragraph 67, all the skills of an experienced person dealing with young children and helping him with his education.

7. The fact that he needs such assistance, not only arises from the fact that he has been diagnosed at level 1 with autism spectrum disorder, but that, like any child of nine, he can be a challenge.  He is energetic; he loves his music; he seems to be doing well at school, as the school report, being at pages 30 to 33 of the bundle submitted by the ICL, attest, and with an awareness of his special psychological challenges of being on the spectrum, the grandmother is in a very strong position to provide and nurture him when the grandfather is otherwise at work.

8. In this respect, I am satisfied that the grandparents have both the appropriate attitude and capacity to parent.  I am satisfied on their untested evidence that they really do support the mother having a relationship with X as long as it is safe, but they are, sadly, not able to say when that point in time might arise.  There is nothing to suggest that they have not, where possible, in the past tried to facilitate safe time between the child and the mother.  They have facilitated initiated telephone calls by the mother to the child, and, in fact, the order I am being asked to make contains a notation supported by all the parties about how the maternal great-aunt, Ms Samol, who has previously supervised time, the last occasion being in February 2018, some 18 months ago, or the maternal aunt, as being appropriate supervisor.

9. In all respects, this is a family that has been drawn together by, sadly, the mother’s mental health challenges. They have not been opportunistic in seeking to take care of X, but, rather, have offered an alternative which, without their involvement, the child would have been left with no one else but the Child Protection authorities intervening. He is much better to be where he is. The Court is required to consider what is in the best interests of the child and make an order least likely to lead to further proceedings. I have already indicated that by choosing, in my view, consistent with the principles and objects of child-related proceedings under the Act to finalise this case today, I do so in circumstances where the mother could seek to revisit the matter.

10. The orders have been made in the mother’s absence but the Court might at some point in time take the view that the condition that she now has been managing as best she can has improved to such a level that she is able to have a different relationship with her son.  The orders which I make permit such time to occur.  As I said, for that reason and so that the maternal grandparents do not have to revisit old evidence in the application by the mother filed in this Court should be brought before me ideally within the next 2 years, if filed.

11. It is appropriate in view of the mother’s sad difficulties with mental health that the Applicant grandparents have sole parental responsibility.  In my view, it is in the best interests of X that he lives with the grandparents.  In my view, the orders sought by the ICL and the grandparents today are in his best interests.  I agree with Ms Feeney’s final submissions, brief though they were, adopting she did quite properly the considered submissions of Counsel for the ICL.  Though this case demonstrates the absolute commitment by the grandparents to their grandson, it is a sad reality in Australia that many grandparents do not spend time with their grandchildren as a result of breakdowns of families or breakdowns of relationships between parents and grandparents.  The love of grandparents of a young child is a special relationship and generally is supportive of the primary relationship that children are entitled to have, and seek to exercise, with their biological parents.  However, where, as in this case through no fault of the mother, but as a result of fate more than anything, she is unable to function in a way to protect the child, the grandparents have taken family responsibility for X.

12. The mother should, if she was functioning well enough, be thankful that her mum and dad have stepped up in such a way.  Certainly, the Court recognises their commitment and their love of this boy and also their genuine desire that their daughter might at some stage of her development recover to a level that she can play a role in his life.

13. The Orders which appear at the commencement of these Reasons are in the child’s best interests at his time.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 22 October 2019.

Associate: 

Date:  26 November 2019