SANDWELL & SANDWELL
[2018] FamCA 1030
•26 October 2018
FAMILY COURT OF AUSTRALIA
| SANDWELL & SANDWELL | [2018] FamCA 1030 |
| FAMILY LAW – CHILDREN – Interim Hearing – Where there have been multiple interim hearings - Where the father seeks retention of existing interim orders – Where the mother seeks fresh interim orders – Where the mother seeks sole parental responsibility for the children, for them to live with her, and for the time they spend with the father to be professionally supervised – Where the Independent Children’s Lawyer supports the mother’s application – Separation of siblings. FAMILY LAW – CHILDREN – Parenting Responsibility – Where findings about the occurrence of past family violence cannot be made – Where the presumption of equal shared parental responsibility is rebutted due to the parties’ inability to cooperate – Where the single expert recommended sole parental responsibility be allocated to the residential parent – Ordered mother have sole parental responsibility for the children. FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where the father has a history of unstable psychological health – Where the single expert considered the father had an insistent fixed and delusional belief the mother was harming the children – Where there is a real risk the father will make further false reports of the mother’s abuse of the children – Where there is insufficient evidence to enable a finding the children need protection against neglect or physical abuse while in the mother’s care – Ordered the children live with the mother and spend supervised time with the father. |
| Family Law Act 1975 (Cth) ss 60CC, 61DA |
| Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Whitby & Zeller (No.2) [2014] FamCAFC 239 |
| APPLICANT: | Ms Sandwell |
| RESPONDENT: | Mr Sandwell |
| INDEPENDENT CHILDREN’S LAWYER: | Foat Roberts Lawyers |
| FILE NUMBER: | NCC | 3665 | of | 2017 |
| DATE DELIVERED: | 26 October 2018 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 26 October 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Page SC & Mr Kelly |
| SOLICITOR FOR THE APPLICANT: | Karen Rands Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Rugendyke |
| SOLICITOR FOR THE RESPONDENT: | Mullane & Lindsay |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Not Applicable | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Foat Roberts Lawyers | |
Orders
PENDING FURTHER ORDER, IT IS ORDERED THAT
All former orders relating to the following children are discharged:
a.X, born … 2016; and
b.Y, born … 2017.
The mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the children.
The children shall live with the mother.
The parties shall take all reasonable steps to ensure the children spend supervised time with the father:
a.Each Sunday from 2:00 pm to 5:00 pm; and
b.Each Wednesday from 2:00 pm to 5:00 pm.
For the purpose of the preceding order:
a.The supervisor of the time spent by the children with the father shall be staff at “F Centre”, or some other person or entity nominated by one of the staff members of F Centre (“the supervisor”);
b.Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;
c.The venue at which the time is to be spent by the children with the father shall be designated by the supervisor;
d.The father shall pay the costs of the supervisor;
e.The parties shall comply with all reasonable requests and directions of the supervisor; and
f.Leave is granted to the parties and Independent Children’s Lawyer to provide a copy of these Orders to the supervisor.
For the purpose of implementing these orders, the parties or their nominees shall arrange the exchange of the children at the McDonald’s Restaurant, B Street, …, NSW.
The father is restrained from photographing or videoing the children, or either of them, for the purpose of verifying their physical injury.
Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.
Pursuant to s 68B of the Family Law Act the father is restrained from entering upon or approaching within 100 metres of the mother’s residence.
Each party shall forthwith inform the other, and keep the other informed, in writing of their mobile telephone number and email address.
Each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the removal of the children from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this order by placing the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on that Watch List for a period of 12 months.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
Save as to costs, otherwise:
a.The Amended Application in a Case filed on 23 October 2018 is dismissed;
b.The Response to an Application in a Case filed on 11 October 2018 is dismissed;
c.The application for interim orders set out within Exhibit ICL1 is dismissed; and
d.Any and all other applications for interim relief are dismissed.
No order as to costs.
BY CONSENT, IT FURTHER ORDERED THAT
Leave is granted to the father to furnish to his intended treating psychiatrist, Dr E, a copy of the single expert report dated 8 August 2018.
NOTATIONS
A.The applicant mother and Independent Children’s Lawyer do not require the publication of Reasons for Order 14 hereof.
B.The proceedings remain listed before the Registrar at 9:30 am on Wednesday, 13 February 2019, for further procedural directions.
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 Sandwell & Sandwell 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 NEWCASTLE |
FILE NUMBER: NCC 3665 of 2017
| Ms Sandwell |
And
| Mr Sandwell |
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Introduction
These proceedings concern the two children of the applicant mother and respondent father, who are now aged two years and six months and 11 months respectively.
The parties separated in October 2017 and these proceedings were commenced in November 2017 before the Federal Circuit Court of Australia. Rather surprisingly, this is the fifth interim hearing between the parties in 11 months.
In December 2017, the Federal Circuit Court made orders between the parties in respect of the children. Essentially, those orders made provision for the parties to have equal shared parental responsibility, for the eldest child to live with the father and spend time with the mother twice each week, for the youngest child to live with the mother and spend time with the father thrice each week, and for the children’s names to be added to the Airport Watch List.
Further orders were made by the Federal Circuit Court in January 2018. For reasons not apparent to me, the Airport Watch List orders were simply repeated and another interim hearing between the parties was fixed for March 2018.
In May 2018, the Federal Circuit Court made another battery of parenting orders. Those orders discharged the orders previously made in December 2017, vested the parties with equal shared parental responsibility for the children, ordered the eldest child to live with the father and spend time with the mother twice each week, and ordered the youngest child to live with the mother and spend time with the father twice each week.
At or about that time, orders were made appointing Dr C, psychiatrist, as the single expert witness in the proceedings.
In September 2018, the proceedings were transferred to this Court for determination.
Although the single expert report was completed on 8 August 2018, it was not apparently released until October 2018. Apparently, it was first released to the Independent Children’s Lawyer on 2 October 2018 and then to the parties about a week later. Immediately after its release, the mother filed another Application in a Case.
The interim application was urgently listed before Rees J in the Sydney Registry of this Court on 11 October 2018. On that date, her Honour made an injunction restraining the father from taking photographs of the children for the purposes of proving their physical injuries and adjourned the proceedings for further interim hearing before me today in a duty list in the Newcastle Registry.
The dispute and the evidence
The father wants to retain the existing orders made by the Federal Circuit Court and by Rees J.
The mother wants both children to live with her and for her to have sole parental responsibility for them. She wants the children to spend supervised time with the father in a contact centre. Inferentially, she relies principally upon the untested evidence of the single expert.
The Independent Children’s Lawyer supports the mother’s application.
In respect of the dispute:
(a)the mother relies upon her two affidavits filed on 10 and 23 October 2018;
(b)the father relies upon his two affidavits filed on 11 and 25 October 2018; and
(c)the parties and the Independent Children’s Lawyer also rely upon the single expert report of Dr C, dated 8 August 2018.
Legal Principles
Orders in respect of children are made under Part VII of the Family Law Act (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA), though that presumption may be displaced in certain circumstances.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
As would be apparent, those orders apply regardless of whether the parenting orders are being made on an interim or a final basis.
The procedure for conducting an interim hearing has been authoritatively established by the Full Court. In Goode & Goode (2006) FLC 93 286 the Full Court said (at [68]):
The procedure for making interim parenting orders will continue to be an abridged process where the scope of the inquiry is “significantly curtailed”. Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
That, however, does not mean that contentious facts must be disregarded. Particularly in parenting proceedings, the Court must remain alive to controversies, the ultimate resolution of which may have a significant bearing upon the determination of orders that meet the children’s best interests. Serious allegations cannot be ignored at interlocutory events simply because they have been put in issue (see Salah & Salah (2016) FLC 93-713 at [33]-[45]; Eaby & Speelman (2015) FLC 93-654 at [18]-[19]; Whitby & Zeller (No.2) [2014] FamCAFC 239 at [63], [71]).
In Banks & Banks (2015) FLC 93-637 (at [47]-[50]), the Full Court noted that a paucity of uncontested evidence means that only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which in the best interests of the children require determination prior to proper determination at trial. Not every s 60CC factor need be discussed in that process.
Section 60CC(2)(a)
The single expert conferred with the parties and the children on 8 August 2018.
At those interviews, the single expert found the eldest child appeared comfortable and relaxed in the mother’s presence, but he noted she asked to see the mother several times when she was observed in the father’s company. As for the youngest child, she was observed to be relaxed and comfortable in both the mother’s and the father’s presence.
The conclusions formed by the single expert about the children’s attachments with the parents, the meaningfulness of those relationships, and the benefit derived from them, appear encapsulated at page 24 of the single expert’s report. The single expert concluded:
Both children had a strong emotional bond and attachment to the father and the mother. The children appeared comfortable and attached to both the father and the mother. From my psychiatric observation of the children with either parent, I found the children were more attached to the mother.
Section 60CC(2)(b)
This section of the Act is concerned with the need to protect the children from harm they may suffer, of either a physical or psychological nature, by reason of their subjection or exposure to abuse, family violence or neglect.
Relevantly for present purposes, the father implied the children are subject to the risk of harm by reason of their neglect by the mother. In the single expert report, it was noted by the single expert that the father reported at least the youngest child was underfed and he conveyed the impression to the single expert that the mother provided the child with insufficient nutrition. Although a submission to that effect was not made by his counsel today, the single expert noted the father took the eldest child to a general practitioner in February 2018 for check-up and the general practitioner reported the eldest child appeared to be thriving, her weight was good, her heart sounds were clear, and no abnormalities were detected. Of course, in February 2018, the eldest child was living with the father, but she was spending time frequently with the mother.
There is no evidence adduced which would enable me to find the children, or either of them, need protection against neglect by the mother – if it be the case that the father continues to harbour any such concern.
A much more significant aspect of this case is the father’s allegations of the mother’s physical abuse of the children. When in consultation with the single expert, the father told him:
I need to protect those girls, they have bruises on their necks, neglect from their mother…both had black eyes, bruises on their foreheads, scratches on their necks, severe nappy rash, red gums, red ears…
That was an allegation repeated in the father’s evidence. In his first affidavit, filed on 11 October 2018, he deposed to his concerns about noticing bruising and red marks on all parts of the children’s anatomy in March 2018 and July 2018.
There could be little doubt that, at least until August 2018, the father entertained the real belief that the mother was physically abusing the children. The mother deposed that she communicated with the father by text message in early August 2018 and he conceded to her in a text message that:
The children have Mongolian blue spot.
The mother understood the father was furnished with that information by hospital staff to whom he had taken the children, seeking explanation for their bruising. It transpired the children were not bruised. As the mother said, which was confirmed by the single expert, the condition of “Mongolian blue spot” is apparently a common skin characteristic in children of Asian and African descent, which can look like bruising.
The father deposed in his first affidavit that, a couple of weeks prior, he instructed his lawyers to notify the mother’s lawyers that, unless he received an explanation as to how the children were sustaining their injuries and he received a signed undertaking from the mother that neither child would be physically disciplined while in her care, he would sever their interaction with her.
It seems the information passed to the father shortly thereafter by hospital staff about the children’s Mongolian blue spot condition came as a surprise to him. It was implied on his behalf that, since being furnished with that information, he is now satisfied the mother is no longer abusing the children. Unfortunately, that is not an inference which can be safely drawn from the evidence.
The mother deposed in her second affidavit, filed only days ago, that even as late as 28 September 2018 the husband sent a text message to her asking:
[the eldest child] has a black eye again and you can’t tell me why.
The mother replied to him and asked for a photo of it, but there was no response.
Then again, as recently as 5 October 2018, the father sent a text message to the mother asking:
What happened to [the eldest child] this time [mother’s name]?
implying his belief the mother had hurt the eldest child again.
Those enquiries, occurring as they did the best part of two months after the father was told of the children’s skin condition, do not serve to allay any concern about the honest but apparently mistaken belief he continues to harbour about their subjection to physical abuse by the mother.
The father, for his part, deposed in his first affidavit that he continued to take the children to the authorities, including the police, until about mid-August 2018 to record physical injuries on their bodies. He says in his affidavit he did that on 13 August 2018, which was some five days after his consultation with the single expert when he was informed of the children’s Mongolian blue spot condition.
For those reasons, I am not satisfied by, and do not accept, the submission that the father has now dispensed with his honest concern about the children’s exposure to the risk of physical abuse by the mother. The evidence provides no objective foundation to find the children are exposed to the risk of harm by their physical abuse by the mother, so there is a dissonance between the father’s subjective belief and objective facts. There is a real risk of further false reports by the father of the mother’s abuse of the children.
Before passing to additional considerations under s 60CC(3) of the Act, there is one last issue to deal with under s 60CC(2)(b).
When the mother commenced these proceedings she deposed in her supporting affidavit:
I am afraid that now [the father] has read the report of [the single expert] he will do something stupid and harm or kill the children to punish me.
I do not suggest the mother does not hold the belief honestly, but it is hardly probative of the objective fact. Most probably, proffering such a belief in her affidavit has only served to intensify the conflict between the parties. It seems to me to be a belief which is histrionic and unconnected to a fair appraisal of the facts. There is no suggestion anywhere else in the evidence that the father has or might physically harm the children.
Section 60CC(3)
No doubt the mother’s concerns about the father are sourced, in some respect, to the history of his unstable psychological health, which instability appears connected to his unshakeable view about the children’s subjection to physical harm in the mother’s care. To make good on that link, I need to briefly advert to the history.
When interviewed by the single expert in August 2018, the father was described by the single expert as:
Highly guarded in his manner and prevaricated when answering questions.
The single expert went on to review the documents in his possession dealing with the father’s psychiatric history.
The father reportedly consulted a psychiatrist when he was 17 years of age, at which time he was using illicit drugs. The father conceded to the single expert he was diagnosed at the time with a drug-induced psychosis and that he felt paranoid. Indeed, he believed he was being followed by people who were going to kill him.
Later, when he was aged about 30 years, the father saw a psychiatrist in Sydney and was unwilling to divulge his symptoms and treatment at that time. He apparently consulted that psychiatrist at his mother’s request.
In 2003, the father was an involuntary psychiatric patient at the Prince of Wales Hospital in Sydney under the Mental Health Act. His psychiatric assessment, conducted by the psychiatric registrar, indicated a diagnosis of first episode psychosis. He was conveyed to the Prince of Wales Hospital because he was deemed to be suffering from a mental illness, which fear stemmed from a violent incident between the father and his parents earlier that evening.
Some years later, in 2007, the father was an emergency presentation to hospital with a laceration to his finger. He admitted he had used illicit drugs that evening. He presented as “very guarded”. When reviewed by the psychiatric registrar, the father was described as “elevated and uncooperative”. Apparently, the paternal grandfather reported the father had accused his parents of some misconduct related to drug dealers. At that time the father’s provisional diagnosis was “drug induced psychosis, cocaine toxication or bipolar disorder”. Significantly, the father was scheduled as a mentally ill person. When he was consulted by a psychiatrist during his admission, it was speculated he had either “narcissistic personality disorder” or “residual delusional beliefs”.
Moving forward to 2015, the father was seen at the D Group, presenting with problems of excessive alcohol use and cannabis use. The paternal grandmother told a professor at the D Group she believed the father might be suffering from “bipolar disorder”.
The father consulted his general practitioner in August 2017 and was prescribed anti-depressant medication and referred to a psychologist on a mental health plan. The provisional diagnosis for him at that time was “adjustment disorder”.
That treatment history ended about 12 months before the father’s consultation with the single expert.
As for the single expert’s opinion of the father, he said:
From the information available to the writer, it is the writer’s opinion within reasonable medical certainty that [the father] has psychiatric diagnoses as per DSM-5 (American Psychiatric Association 2013) consistent with delusional disorder (multiple episodes, currently in acute episode, untreated, persecutory and grandiose type), and alcohol, cannabis and amphetamine use disorders (in reported remission)… An alternative (or differential) psychiatric diagnosis to delusional disorder, is schizophrenia. This diagnosis was substantiated by the father’s restricted affect, evasive thought form, historical thought disorder, current paranoid delusions regarding the mother and historical paranoid and grandiose delusions about being the leader of [a European criminal organization].
As a consequence of his diagnosis, his perception of the father’s poor insight, and the father’s poor past engagement with psychiatric services, the single expert strongly recommended ongoing pharmaceutical therapy for the father. The single expert opined that, if the father complied with psychiatric treatment for delusional disorder for at least 12 months, it “may” improve his prognosis.
The mother, when speaking with the single expert, reported the father kept alleging the children are getting sick in her care and he denigrated her in the presence of at least the eldest child.
The single expert commented upon the risk of harm posed by the father to the children. The single expert considered the father had an “unshakeable belief that the children were being harmed by the mother” and, although the father denied any paranoid or other delusions, the single expert considered he had an insistent fixed belief the mother was harming the children. The single expert thought the father was insightless about his fixed beliefs.
Unfortunately, the father expressed those fixed beliefs to the single expert in the presence of the children, which alarmed the single expert. The single expert, in that respect, reported as follows:
There were significant concerns regarding the father. The father’s comments in the presence of the children, that the mother was abusing and neglecting the children, was clinically regarded as emotionally harmful to the children, particularly as the children grow older and attain a greater understanding of language and non-verbal communication.
The single expert considered that, if the father complied with all recommended psychiatric treatment, then he need not be eliminated from the children’s lives. However, he recommended that, until the father had completed 12 months of full psychiatric treatment, the children should only spend time with him for up to four hours per week supervised by professional supervisors.
The single expert did not believe the father’s parents or his current partner were able to satisfactorily fulfil supervisory obligations because of their inability to curtail his expression of his delusional beliefs about the mother in the children’s presence.
The inference strongly available from the evidence is the father has not dispensed with his belief that the mother is continuing to harm the children, despite having been independently told the rational explanation for the children’s skin discolouration is, in fact, a diagnosable medical condition and not injury from their physical assault.
Significantly, the father showed a selection of photographs (presumably being the ones he thought best demonstrated the injuries) to the single expert and the single expert reported they did not, in his view, demonstrate injuries to the children at all.
While the reason behind the father’s adherence to his apparently false belief in the mother’s abuse of the children is unnecessary to identify, it seems plausibly connected to the delusional beliefs from which the single expert diagnosed he suffers.
One other aspect of the evidence, remarked upon by the single expert as important, is the sibling relationship between the two children. The single expert said simply and frankly:
It is in the children’s best interests to live with each other. I recommend that both children live with the mother.
There were no other aspects of the evidence prescribed by s 60CC(3) of the Act to which counsel for the parties or the Independent Children’s Lawyers directed my attention.
Conclusions
At this point, it is necessary that I return to s 61DA of the Act and the presumption of equal shared parental responsibility. Although the mother alleged the father conducted himself in a way which could conceivably be defined as coercive and controlling, due to the controversy over the issue, I am not at this point in time able or prepared to make any findings of fact about the occurrence of past family violence. For that reason, I do not apply s 61DA(2) to render the presumption of equal shared parental responsibility inapplicable.
Rather, the course this litigation has taken over the last 11 months convinces me the parties are unable to agree on almost anything. The investiture of the parents with equal shared parental responsibility for the children would necessarily require them to co-operate, civilly discuss, and reach consensus upon important issues related to the children. At least inferentially, the evidence suggests that is beyond them. I am, therefore, inclined to invoke s 61DA(4) of the Act, because the allocation of equal shared parental responsibility for the children to the parents would be inapposite. The evidence rebuts the presumption.
As was opined by the single expert (on page 27 of the single expert report), sole parental responsibility for the children, at least in respect of all significant matters in their lives, should be allocated to the residential parent. The single expert suggested that should be the mother and I agree.
In summary, although the children have meaningful relationships with both parents from which they derive benefit, I accept for present purposes that the children’s attachment to the mother is stronger. I do not accept the children are at any tangible risk of harm through either the mother’s abuse or neglect. In my view, the children are best served by living together with the mother so their sibling relationship can be consolidated at their young age. For those reasons, I intend to order that the mother be vested with sole parental responsibility for all significant decisions in the children’s lives, order that the children live with her, and order that the children spend time with the father.
I have struggled with the decision as to whether the time spent by the children with the father should be supervised or not. I am disinclined to react impulsively to the untested evidence of the single expert, particularly in circumstances where I am told the expert evidence is the subject of dispute. But, adverting to the comments of the Full Court in Salah & Salah, Eaby & Speelman, and Whitby & Zeller, although I cannot and will not make findings about the extent of the father’s psychological troubles at this point in time, the issue seems to be serious enough to pay heed to it as a risk which warrants a cautious approach. His psychological instability seems to pre-dispose him to erratic responses to the children’s interaction with the mother. On balance, I therefore intend to impose a condition of supervision.
I accept what the single expert says about the relative unsuitability of family members to provide that supervision. The use of aligned family members as supervisors is generally discouraged (see Marriage of B & B (1993) FLC 92-357 at 79,780 – 79,781). I therefore intend to make orders requiring the supervision to be provided on a professional basis, though the children’s interaction with the father need not be confined to a contact centre. I accept it will come at a cost and the mother is not in a financial position to contribute to the cost, but the children’s best interests warrant such a cautious approach being taken at this stage of the proceedings.
Otherwise, some orders previously made between the parties, which were not the subject of contest in this interim hearing, are perpetuated.
I therefore make orders in the following terms.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 26 October 2018.
Associate:
Date: 7 December 2018