SIMEN & SIMEN
[2019] FCCA 3533
•11 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIMEN & SIMEN | [2019] FCCA 3533 |
| Catchwords: FAMILY LAW – Interim parenting – best interests of child – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC |
| Cases cited: Goode & Goode (2006) FLC 93-286 Marvel & Marvel [2010] FamCA 240 Banks & Banks [2015] FamCAFC 36 Eaby & Speelman [2015] FamCAFC 104 |
| Applicant: | MR SIMEN |
| Respondent: | MS SIMEN |
| File Number: | PAC 1734 of 2019 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 21 November 2019 |
| Date of Last Submission: | 21 November 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 11 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schroder |
| Counsel for the Respondent: | Ms Spain |
| Solicitors for the Independent Children's Lawyer: | Mr MacDiarmid |
ORDERS PENDING FURTHER ORDER
The child [X] born … 2010 shall spend time with the father pursuant to the Court’s orders dated 30 September 2019.
Engagement with the Anchor Program
Each parent shall within 7 days contact Uniting for the purposes of:
(a)arranging and attending the first available and offered intake appointment for the Anchor Program to enable the child to participate in therapeutic counselling;
(b)attending any other program of therapeutic counselling to which they are referred by Uniting, including, without limitation, the Keeping the Contact Program; and
(c)each seeking a referral from Uniting to attend an appropriate parenting after separation course, and upon receipt of such referral:
(i)shall attend and complete the first available such course;
(ii)pay all required fees;
(iii)provide a copy of a certificate of completion of such course to the Independent Children’s Lawyer and the lawyer for the other parent.
Subject to assessment as to suitability and acceptance of the child by the Anchor Program (or such other program or therapist nominated by the Independent Children’s Lawyer in the event that the child is not accepted by Uniting pursuant to the previous order), each parent shall do all things and compete and sign all documents including, without limitation, the provision of any necessary consents, and ensuring that the child attend all appointments, necessary for her to be enrolled in and participate in such program or follow up such referral.
In the event that Uniting is unable or unwilling to enrol the child in the Anchor Program, the parents will each do all thing such other program or therapist nominated by the Independent Children’s Lawyer.
The parents shall pay equally any fee charged by Uniting for the child’s participation in the Anchor Program or any other program to which they are referred pursuant to these Orders.
The parents are restrained from taking the child to any therapist other than in accordance with these Orders.
That both parents, without admissions, be restrained from consuming alcohol to excess such that he or she would be unable at law to drive a motor vehicle, 12 hours prior to and during such period of time as the child is in his or her respective care.
IT IS NOTED that publication of this judgment under the pseudonym Simen & Simen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1734 of 2019
| MR SIMEN |
Applicant
And
| MS SIMEN |
Respondent
REASONS FOR JUDGMENT
This interim hearing related to the child [X] born … 2010.
Background
The parties commenced a relationship in about December 2003/January 2004.
The parties separated under the one roof in about 1 July 2018. The father left the former matrimonial home on 15 January 2019.
Following 15 January 2019, and up until interim parenting orders were made by consent on 30 September 2019 (without admissions, and without prejudice to either parent’s capacity to seek further interim relief), the child spent only irregular and ad hoc arranged time with the father.
The child spent time with the father pursuant to the Court’s interim orders of 30 September 2019 up until about 24 October 2019.
Proposals
The ICL sought interim parenting orders in accordance with his proposed Minute of Order, Exhibit D. Those proposed orders provided, inter alia, that the child spend time with the father initially one night a week, progressing in late December 2019 to 2 overnights each fortnight, and then progressing from the end of January 2020 to 3 overnights each fortnight.
The father agreed with the ICL’s proposed orders in Exhibit D with these additions: a further proposed order 4A (“Until order 4 starts, the father will collect the child from school at the start of his time and return the child to the mother’s residence at the conclusion of his time”); and additionally sought restraining orders set out in his proposed orders 18 and 20 in his proposed Minute of Order attached to his counsel’s Case Outline.
The mother sought orders in accordance with her proposed Minute of Order being Exhibit C. Exhibit C refers to proposed orders, inter alia, that there be no time between the child and the father for three weeks; then the father have telephone contact with the child three times a week for two weeks; then the child spend time with the father at a public place such as the shopping centre for four hours on a Saturday or Sunday between 8AM and 6:30PM for four weeks; then the child spend time with the father at a public place such as the shopping centre for six hours on a Saturday or Sunday between 8AM to 6:30PM for four weeks; and then the child spend time with the father in accordance with the Court’s interim orders of 30 September 2019.
Materials relied upon
The mother relied upon her Affidavit filed 20 November 2019; and the maternal grandmother’s Affidavit filed 20 November 2019.
The mother also relied upon Exhibit E being an adult assessment, with, inter alia, accompanying clinical notes, of six pages, relating to the father’s consultation with Mr A, psychologist, dated 17 January 2018.
The father relied upon his Amended Initiating Application filed 23 September 2019; his Affidavit filed 19 November 2019; Affidavit of the father’s treating psychologist Mr B filed 19 November 2019; Affidavit of the father’s treating neurologist Dr C filed 21 November 2019; and an Affidavit of the father’s new partner Ms D filed 23 September 2019.
The father also relied upon Exhibit A being a CDT test of 16 October 2019 stating inter alia, in relation to a blood sample collected on 3 October 2019, “the normal CDT does not support excessive alcohol intake.
Exhibit B was the Child Inclusive Conference Memorandum to Court dated 6 November 2019.
Agreed facts unless otherwise stated
The mother is aged 42 years. She is Ethnicity E and was born in Country F. She is an Australian citizen.
The father is aged 43 years.
The father asserts that between 2011 and 2016 he had some unexplained health issues. He asserts that he would become overly tired quickly and it was difficult to wake him and he fell asleep. He asserts that he has had no episodes for over 36 months now.
The history of the father taken by his treating neurologist, Dr C, states, inter alia, that she initially saw the father in 2015, with the father presenting with frequent episodic events of uncertain aetiology characterised by periods (30 to 60 minutes) of aberrant behaviour, confusion, ataxia and slurred slow speech followed by hypersomnia. The father had no recollection of the events.
The neurologist had consultations with the father on three occasions in 2015, consultations in June 2016, and then consultations in June and October 2019.
The neurologist stated that the father had been treated with certain medication. The father reported to the neurologist that he was weaned off the medication in 2017 and he has remained stable.
The neurologist states that she was not contacted by the father or his partner regarding any ongoing issues until consultation with the father in June 2019, at which time he reported the resolution of episodic events for several years off medication.
The neurologist stated that the differential diagnosis discussed with the father was psychogenic non-epileptic events again precipitated by psychological stressors.
The neurologist stated that when she saw the father for review in June 2019 he reported he had been free of episodic events for three years. He had weaned the medication without any change in clinical condition. There were no focal neurological signs.
The neurologist had been provided with the mother’s “Affidavit and Court order documents” which stated that there were ongoing concerns regarding persistent events (relating to the father). The neurologist stated in this context that, “I can only comment on what was reported to me by the patient at subsequent review…” The neurologist stated that the father had initiated the June 2019 consultation due to what the neurologist believed were legal requirements for the medical review to be updated.
The neurologist stated that there were no concerning abnormalities on extensive testing for structural, electrical and metabolic abnormalities. She stated the father’s prognosis was excellent.
The neurologist stated that the father showed insight into his previous disorder, and potential triggers during discussions. She stated that complete resolution over a prolonged period of time bodes well for an excellent prognosis. She stated, “Both migraine and psychogenic non-epileptic events can re-occur during periods of excessive stress or sleep deprivation/fatigue, however (the father) manages his lifestyle and psychological well-being proactively to avoid such triggers.”
The neurologist stated that her only recommendation upon review in 2019 with the father was for the father to maintain regular contact with his clinical psychologist. She stated that this was for both maintenance of overall well-being and to ensure the father has strategies to manage stress thereby minimise the low risk of recurrent symptoms. The father was continuing his care with his treating psychologist who agreed this was beneficial.
The father asserts that he commenced a new relationship in April 2019 with Ms D. They do not live together, and spend significant amounts of time together at each other’s residences. Ms D is aged 48 years. She works in healthcare. She has been a healthcare professional for 27 years.
Ms D asserts that she has met the child and gets along very well with her and enjoys spending time with her. She asserts that the father has told her of his unexplained medical issue, including fatigue and extreme exhaustion symptoms. She asserts that she has not witnessed any of these symptoms in the father.
The maternal grandmother asserts that she witnessed the Father’s “episodes” from 2012-2018 first hand and during several family events. She asserts that in July 2018, at the mother’s request, the mother having informed her that she had spoken to the father and his language was slurry and he sounded angry, she had gone to the father’s home to check on the child. She found the father sleeping on the couch and could not awake him.
She asserts that she recalls the mother telling her that when the father had an “episode” he became aggressive and frightening. She asserts that the “episodes” would occur in the early evenings. She asserts that the last time she saw the father take his prescribed medication for his episodes was in early 2018.
Exhibit E, being the adult assessment of the father by the psychologist Mr A dated 17 January 2018, refers, inter alia, to the father noticing, “blackouts..in evenings-had tests, took anticonvulsants, that helped. But (the mother) was stressed…and (the father) was also angry/irritable/groggy. Very rare now. (The mother) now sends me off to bed.” Under the heading “Medical and Psychiatric history”, it is stated by the author, “…Have unspecified passing out/groggy/irritable..”
Annexure C to the Affidavit of the mother, being a letter from the father’s GP to Mr A dated 5 January 2018 refers, inter alia, to “Current medications” and which includes medication G (“1.5 tablet twice a day”). That medication is the medication that the father asserts he ceased using in 2017.
Legal principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel [2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context, the Court refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.
Best interests of child
Meaningful relationship primary consideration
The child has a meaningful relationship with the mother and would benefit from a continuance of that relationship.
The child would appear to still have a meaningful relationship with the father, although that relationship may be strained to some extent, and in this regard the Court refers to the Child Inclusive Conference memorandum.
Should the child resume spending time with the father in accordance with the Court’s orders of 30 September 2019, in conjunction with the child participating in the Anchor Program (see the Court’s discussion below), there is a significant prospect that the child’s meaningful relationship with the father can be maintained and any existing strain to that relationship can be repaired.
The Court has a significant concern, in relation to the mother’s proposed orders in Exhibit C, that they will have a detrimental impact upon the child’s meaningful relationship with the father. By reference to the mother’s proposed orders in Exhibit C, those proposed orders would have the effect of, inter alia, delaying a resumption of the Court’s orders of 30 September 2019 for some 13 weeks, noting that the child has not spent time with the father since about 21 October 2019, and, moreover, providing that during that 13 week period, there would be no face-to-face time for the first 5 weeks and then 8 weeks face-to-face time in a “public place such as the shopping centre”.
Need to protect primary consideration
The Court has a concern in relation to the child presently spending overnight time with the father. On the material before the Court, there is an unacceptable risk of harm posed to the child if spending overnight time with him.
On the material before the Court, there remains a real risk, should the child be spending overnight time with the father, that the father will experience one of his “episodes”, previously discussed in these Reasons, whereby the father will, inter alia, fall asleep without being able to be readily woken up in a timely fashion. Should this occur to the father, then the subject child, aged nine years, will not be able to be properly cared for and supervised; that is, the child may be subject to neglect in the father’s care.
There is conflicting evidence before the Court as to whether or not the father has been free of his “episodes” since 2016, as he asserts, or whether these “episodes” have continued to at least 27 December 2018, as asserted by the mother (and see her detailed diary entries relating to the “episodes”), and arguably supported, at least to some extent, by the evidence of the maternal grandmother who asserts the father having had an “episode” in July 2018.
In this context, the Court notes that Dr C provided her opinions on the basis of the father’s assertions and did not provide any relevant opinion based upon the mother’s assertions; accordingly, it is unclear what Dr C’s opinions might have been, in relation to the father’s prognosis, had she assumed the accuracy of the mother’s assertions.
Further, there is conflicting material as to whether the father’s history given to that Doctor in relation to weaning off medication G in 2017 is accurate (see, for example, the copy of Dr H GP’s letter to Mr A dated 5 January 2018, in relation to the father, stating under the heading “Current medications”, a reference to medication G. Reference is also made to Mr A’s clinical notes of 17 January 2018 stating under the subheading “Illness”, “Unidentified seizure disorder, managed with medication”).
The report of the father’s psychologist Mr B dated 14 October 2019 refers to that psychologist’s understanding that the father has been “episode free for three years”, which is at odds with, inter alia, the mother’s assertions. Further, he states that medication G was discontinued approximately four years ago.
There is a significant suggestion on the material before the Court that the father’s “episodes” occur, or are more likely to occur, during the evening.
Acting cautiously and conservatively, the risk of the child spending time with the father overnight when the father might experience an “episode”, can be minimised and addressed by making interim orders that the orders of 30 September 2019 resume, allowing daytime time between the child and the father.
The Court does not have a significant concern about the father’s alcohol consumption, particularly in view of the mother’s statement to the family consultant that the father’s consumption of alcohol each night equates to about a glass of wine, and the father’s satisfactory CDT test: see Exhibit A.
The mother contends that should the Court’s orders of 30 September 2019 be resumed presently, without her proposed graduating time-with orders being made and facilitated, as proposed in Exhibit C, the child may be exposed to a significant risk of psychological harm.
In this context, the mother asserts that since 24 October 2019 to date, the child has refused to talk to the father or see him despite the mother’s ongoing encouragement for a continued relationship. The mother alleges, inter alia, that the child’s anxiety and distress has escalated to the point where the child is experiencing adverse physical and psychological symptoms. In this context, the mother refers to the child’s statements to the psychologist Ms I (see Annexure E to the mother’s Affidavit), and to the recommendations of Ms I.
The Court observes that the child told the psychologist, inter alia, that her “stressors would not be occurring if her father would listen to her about not wanting to sleep over at his place, and they therefore, would not have to go to Court.” As discussed under this need to protect primary consideration, the Court is not proposing overnight time at this interim stage.
The Court further observes that the psychologist recommended that the child have a short break from seeing the father. In this context, the Court observes that the child has not spent time with the father since about 21 October 2019.
The Court further observes, in this context, that at the Child Inclusive Conference, on 4 November 2019, albeit prior to the child’s consultation with the psychologist of 13 November 2019, that the Family Consultant did not refer to any observed adverse emotions exhibited by the child, such as distress. Further, the Family Consultant did not refer to the child stating that she did not want to spend any time with the father, rather that the child stated that she did not want to sleep at the father’s home-at one point the child is recorded as requesting that, when she spends time with the father, “it’s just me and Dad and no one else.”
The Court further observes that the child had stated to Ms I that she would be happy to see the father in an open location, such as a park, by himself, albeit with the mother remaining close by.
The Court gives significant weight to this need to protect primary consideration.
Additional considerations
The ICL, supported by the father, but opposed by the mother, seeks orders relating to the child engaging with the Anchor Program to participate in therapeutic counselling. Such proposed orders also provide for the parties being restrained from taking the child to any other therapist, and which the ICL acknowledges would restrain the mother from continuing to have the child treated by Ms I, psychologist, who has been affording psychological treatment to the child since about August 2018.
The Court is of the view that it will be in the best interests of the child to participate in the Anchor Program as proposed by the ICL, and that the ICL’s above restraining order be made. The Court has a concern, on the material before the court, in circumstances where the father contends that the mother is undermining the child’s relationship with him, and where the family consultant has observed that there appears to be a strained relationship between the child and the father, that the child’s treatment with psychologist, Ms I, has not sufficiently included input from the father. The court is of the view that the Anchor Program will best be able to provide therapeutic intervention for the child with appropriate input from each parent.
In this context, the Court observes, inter alia, that the child has been seeing Ms I since August 2018 at the residence of the mother and child, at least since Ms I moved her psychology practice to Suburb J. The mother told the family consultant that whilst she does not sit in on the child sessions with Ms I, Ms I does ask the mother if there are any concerns before she sees the child, and gives the mother information after the session if there is something of which she believes the mother should be aware.
It will be in the best interests of the child to make the father’s proposed order 20 relating to both parents, without admissions, being restrained from consuming alcohol to excess prior to and during such period of time as the child is in their respective care.
Should the child resume spending time with the father pursuant to the court’s orders of 30 September 2019, with changeovers occurring in accordance with those orders, the court observes that the parties will remain subject to the restraining orders relating to discussion of the proceedings and non-denigration (see orders 3, 4, 5 in exhibit B of the courts orders of 30 September 2019); compliance by the parties with such serious restraining orders should minimise the risk of the parties conducting changeover with the child in circumstances of conflict.
Evaluating the above discussed relevant considerations under s60CC of the Act, it will be in the best interests of the child to make the following interim orders:
The child shall spend time with the father pursuant to the Court’s orders dated 30 September 2019.
Engagement with the Anchor Program
Each parent shall within 7 days contact Uniting for the purposes of:
a)arranging and attending the first available and offered intake appointment for the Anchor Program to enable the child to participate in therapeutic counselling;
b)attending any other program of therapeutic counselling to which they are referred by Uniting, including, without limitation, the Keeping the Contact Program; and
c)each seeking a referral from Uniting to attend an appropriate parenting after separation course, and upon receipt of such referral:
i)shall attend and complete the first available such course;
ii)pay all required fees;
iii)provide a copy of a certificate of completion of such course to the Independent Children’s Lawyer and the lawyer for the other parent.
Subject to assessment as to suitability and acceptance of the child by the Anchor Program (or such other program or therapist nominated by the Independent Children’s Lawyer in the event that the child is not accepted by Uniting pursuant to the previous order), each parent shall do all things and compete and sign all documents including, without limitation, the provision of any necessary consents, and ensuring that the child attend all appointments, necessary for her to be enrolled in and participate in such program or follow up such referral.
In the event that Uniting is unable or unwilling to enrol the child in the Anchor Program, the parents will each do all thing such other program or therapist nominated by the Independent Children’s Lawyer.
The parents shall pay equally any fee charged by Uniting for the child’s participation in the Anchor Program or any other program to which they are referred pursuant to these Orders.
The parents are restrained from taking the child to any therapist other than in accordance with these Orders.
That both parents, without admissions, be restrained from consuming alcohol to excess such that he or she would be unable at law to drive a motor vehicle, 12 hours prior to and during such period of time as the child is in his or her respective care.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 11 December 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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