Sidebottom and Brown

[2008] FamCA 363

FAMILY COURT OF AUSTRALIA

SIDEBOTTOM & BROWN [2008] FamCA 363

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Mother’s psychiatric state – Orders for assessment of mother

APPLICANT: Mr Sidebottom

RESPONDENT: Ms Brown

FILE NUMBER: MLC 3166 of 2008

DATE DELIVERED: 18 April 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R.P. Hutchins

SOLICITOR FOR THE APPLICANT: CE Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr A.J. Crozier-Durham

SOLICITOR FOR THE RESPONDENT: Family Law Assistance Program

Orders

1. That paragraphs 4, 5, 6 and 7 of the Orders made 28 March 2006 be suspended.

2. That the children, Y born … May 1997 and A born … June 2000 live with the husband.

3. That the wife be psychiatrically assessed as to her current psychiatric condition and the risk, if any, she poses to the children's welfare.  The wife attend upon Dr K as soon as possible for the purposes of his examination and report.  The parties do all things required to authorise Dr K obtaining access to any of the wife's previous medical history, DHS information, the children's schools and Ms M or such other information deemed appropriate by Dr K.  That at first instance the husband be responsible for the cost of Dr K’s report without prejudice to his right to apply at later proceedings for contribution to the costs from the wife.

4. That subject to paragraph 5, the wife spend time with the children as follows:

   Saturday, 19 April, 9.00 am to 12.00 noon.

   Sunday, 20 April, 9.00 am to 12.00 noon.

   Wednesday, 23 April, 3.30 pm to 6.30 pm.

   Saturday, 26 April, 4.00 pm to 7.00 pm.

   Sunday, 27 April, 9.00 am to 12.00 noon.

   Wednesday, 30 April, 3.30 pm to 6.30 pm.

   Saturday and Sunday, 3 and 4 May, 9.00 am to 12.00 noon.

   Wednesday, 7 May, 3.30 pm to 6.30 pm.

   Saturday, 10 May, 4.30 pm to 7.30 pm.

   Sunday, 11 May, 9.00 am to 12.00 noon.

   Wednesday, 14 May, 3.30 pm to 6.30 pm.

   Saturday and Sunday, 17 and 18 May, 9.00 am to 12.00 noon.

   Wednesday, 21 May 2008, 3.30 pm to 6.30 pm.

5. Such time spent as provided for in paragraph 4 hereof is to be supervised by Ms R, Ms F or such other person agreed between the parties.  At first instance the husband shall be responsible for the reasonable costs of the supervision not exceeding $20 per hour without prejudice to his right to seek recovery of such costs at the further hearing of the father's Application.

6. That all extant Applications be adjourned for further hearing to the Senior Registrar's Duty List on 22 May 2008.

7. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

8. Certify for counsel.

9. Reasons for judgment to be transcribed and placed on the Court file.

10. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

THE COURT NOTES:

1. A tentative appointment has been made for the wife with Dr K at 5.30 pm on 5 May 2007.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3166 of 2008

MR SIDEBOTTOM

Applicant

And

MS BROWN

Respondent

REASONS FOR JUDGMENT

1. Y is nearly 11 and A is nearly eight.  Unfortunately, these young girls are again at the centre of court proceedings, their parents having litigated over their care, off and on, for many years. 

2. The parents were separated and there was one round of litigation in 2003.  In late 2003, they reconciled.  They separated finally in about mid-2004.  There was further lengthy litigation.  It concluded with consent orders on 28 March 2006.  Broadly, those orders provided for the girls to live weekabout with their parents and that is what occurred until the last two weeks.  The father has kept the girls in his care since 28 March 2008. 

3. The father says that until the case can return to court with the ICL reappointed, the mother should only have supervised time with the children. The mother says that the weekabout arrangement should be resumed in the meantime.  One other significant area of dispute today is that the father says there should be an updated report on the mother's psychiatric health from Dr K and the mother resists that.

4. What has precipitated this litigation is that, against a backdrop of the mother alleging in the previous proceedings that the father had sexually abused the girls, on 28 March 2008 she made a notification to the Department of Human Services that she was again concerned for her daughters.  She described her concern at paragraph 8 of her affidavit filed on 11 April 2008 as follows:

   Immediately after the children were picked up I made a DHS notification explaining that I was concerned about my children's behaviour that they had displayed during the week namely, after both children arrived home on Friday 21 March, 2008 they were extremely hyperactive jumping off the kitchen benches, which behaviour settled somewhat by the end of the week. [A] started stuttering again and was running around the house with a used toilet roll positioned between her legs (where a penis would be) and thrusting her pelvis forward.  [Y] was sitting beside me watching TV and appeared to be emulating fellatio with her hand to her mouth and then turning to the side and dry-reaching.  [Y] also showed me her arm.  Around the inner lower arm there were five small lacerations, all bleeding where the skin had been broken.  She had done this to herself with her fingernails, and she told me that she does this to herself sometimes.  I asked her not to do that to herself and cut her fingernails.

5. The mother describes in her affidavit material that she went to the father's home on 1 April to visit her daughters.  In front of the father's partner, she asked the girls if the father and his partner's six-month-old baby daughter was safe in the father's care.  On her account of that conversation, one child became upset, but the other said, "No, she is not," meaning that the baby was not safe with the father.  The mother returned home and made a further notification to the Department of Human Services, this time expressing concern for the three girls, that is, her daughters and baby L.

6. A few days later, she received a letter, hand-delivered by the father's solicitor, explaining that the children would not be returned until certain events had occurred or safeguards had been put in place.  On 8 April she received a call from the Department of Human Services with the news that DHS would not investigate the matter further, having spoken with the children's school principal, and most importantly with Ms M, the counsellor who had been having ongoing contact with the girls pursuant to the existing court orders, and given that neither of them had reported any objective concerns about the children.

7. At this interim stage, I must do the best that I can to make orders designed to meet the children's best interests while further material is amassed. The Family Law Act directs me to a range of considerations, the primary ones which relate to the children maintaining a meaningful relationship with each parent and ensuring that the children are not exposed to a risk of harm.

8. In this case, the second consideration weighs heavily in my analysis of the children's very short‑term best interests.  I note previous proceedings centred on the mother's concern about the children's sexual abuse, although it is clear from the orders made in 2003 that she then specifically withdrew those allegations.  She says through counsel today that she was forced to withdraw them in order to effect a reconciliation with the father.  But it is clear that she held the same concerns in the 2004 to 2006 litigation, although she then agreed to the orders for shared care.  She swears today that she agreed to the orders for shared care because she had been advised by her barrister that she could otherwise lose “custody” altogether.  It is clear that today she still harbours the same concerns. 

9. The mother’s psychiatric history is relevant.  Dr K diagnosed her in August 2003 as suffering a schizoaffective disorder.  He wrote then:

   From the psychiatric viewpoint, this woman presents on the balance of probability with a schizo-affective disorder.  This means that there has been a mood disturbance problem, which included both depression, and a hypermanic episode, and as well as psychotic features of the paranoid type.

10. The existing final orders were predicated on the mother receiving ongoing psychiatric treatment and taking her medication on an ongoing basis.  She annexes a report to her affidavit from Dr S, a psychiatrist, who had not seen her for 12 months until 9 April 2008, until these events had arisen.  She told him that she was well and that she had discontinued her medication since May 2007.  The psychiatrist described no evidence of thought disorder or psychotic state of mind but he was unable to say whether her concerns about the girls' sexual abuse represented "a delusional belief or an overvalued paranoid idea".

11. Despite the mother’s current concerns, she proposes through counsel today, as she has in the past, that the children live weekabout with the father.  I must say that is extraordinarily hard to fathom, given the current concerns expressed by her and her complaints about agreeing to such orders against her will in the past.  I am concerned that there are signs that the mother's behaviour is not rational.  I can only point to some illustrations.  I point to her immediate response to the children's behaviour on 21 March 2008 which, if accurate - that is, if her account of their behaviour is accurate - could have led to various interpretations and yet the only interpretation that she arrived at was that they had again been exposed to behaviours instigated by their father.  I am very concerned with what the father reports in paragraphs 25 to 28 of his affidavit, ultimately substantiated, because they give rise to various forms of conduct which really do not seem well balanced and rational.  I am concerned about the transcribed telephone call contained in the father's affidavit which again, if accurate, would have the mother apparently enlisting and involving one of the children, Y, in a most inappropriate way.  I am concerned, as I have already noted, that despite the facts raised by her and the allegations raised by her, she is agreeing to shared care because there is an inherent conflict in those two positions. 

12. I am also alarmed by the matters raised in Ms T’s affidavit.  Ms T, the father's partner, is someone that the mother speaks of as a person she admires and trusts.  Ms T describes the mother “warning her” on 26 March 2008 about the father, but also warning her about the risks presented to the children from Ms T’s own father.  Ms T reported other bizarre behaviours, for example, in paragraphs 14 and 15 of her affidavit:

    [The mother] also told me that I had to go and see a film, The Spiderwick Chronicles, which is currently showing in the cinema because there was a message in there for me and she was sure that I would understand.  She said it was very important that I must go to see the film and pay attention to the message.

13. In paragraph 15:

    [The mother] further told me that she hated to say it but the slideshow at my parents' house the previous night, which the girls had told her about, was to brainwash me to thinking that I had a happy childhood when in reality, according to [the mother], my childhood had not been happy and safe.

14. Combined, these aspects of the evidence alarm me as to the current risk to the girls in their mother's care.  At the same time, I need to ensure that a period where they see less of their mother and only in a supervised setting (as appropriately required by the father), should be minimised, and the opportunity for a proper and prompt assessment of the mother's psychiatric health should be maximised.

15. I am told now by Mr Hutchins for the father that Dr K would be able to see the mother on 5 May 2008 and I think it is entirely appropriate to take advantage of that appointment.  First of all it is timely, and secondly it is with a doctor who has prepared what in some ways could be seen as a benchmark report previously in relation to the mother’s mental state.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  18 April 2008