SKELLY & HUXFORD

[2015] FamCA 345

FAMILY COURT OF AUSTRALIA

SKELLY & HUXFORD [2015] FamCA 345

FAMILY LAW – PARENTING – where ex-parte application – where appropriate to consider application ex-parte – where mother admitted to mental health facility – where mother placed child with father – where mother’s prognosis unknown – consideration of child’s best interests – where appropriate for orders that child live with father pending further orders.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Skelly

RESPONDENT: Ms Huxford

FILE NUMBER: SYC 1669 of 2010

DATE DELIVERED: 1 May 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Foster J

HEARING DATE: 1 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Haughton

SOLICITOR FOR THE APPLICANT: Solon Lawyers Solicitors & Attorneys

COUNSEL FOR THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT:

1. Compliance with any Rules so as to facilitate this matter being dealt with today on an ex parte basis is dispensed with.

2. Leave is granted to the parties to approach the Listings Coordinator for the purpose of obtaining dates for hearing in relation to the applications referred to below noting that it is anticipated that the hearing will take one day plus.

IT IS NOTED THAT:

(A)The pending applications the subject of the preceding order are:

(a)       Father’s Contravention Application filed on 14 May 2014;

(b)       Father’s Contravention Application filed on 17 September 2014;

(c)       Father’s Contravention Application filed on 21 November 2014; and

(d)       Father’s Application for Contempt filed on 21 November 2014.

IT IS FURTHER ORDERED THAT:

1. All previous orders in relation to the child living with or spending time with either parent be suspended pending further order noting that the order for equal shared parental responsibility made by consent on 17 October 2010 continues.

2. Pending further order the child M born … 2007 (“the child”) live with the Father.

3. Pending further order the child spend time with the Mother as agreed between the parties.

4. The Mother do all things necessary and sign all necessary documents so as to facilitate the Father being able to obtain information from her treating medical practitioner in particular Dr C, consultant psychiatrist, in relation to the Mother’s mental health and her capacity for either the child to return to reside with her in terms of the previous orders or for the child to spend time with the Mother and upon what conditions such time should be implemented having regard to the Mother’s mental health issues.

5. Leave is granted to the Mother to make application to vary or discharge these orders on short notice noting however that any such application should be supported by appropriate medical evidence on affidavit by her treating medical practitioners as to her history, current and proposed treatment, her prognosis and the capacity of the Mother to provide appropriate care of the child in the event that the child is either living with her or spending time with her as agreed between her and the Father.

6. The parties are granted leave to issue such subpoena as they consider relevant to the issues before the Court with such subpoena to be returnable by no later than Friday 19 June 2015.

7. The Mother and Father do all necessary things to attend Child and Parenting Intake Assessment interviews as follows:

   (a)       The Mother on 25 June 2015 at 2:00pm; and

   (b)       The Mother, Father and child on 29 June 2015 at 9:00am.

8. The Father effect personal service of the Application in a Case filed today, the Father’s affidavit filed today and a sealed copy of these orders as soon as practicable and in any event no later than 14 days from this date.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1669 of 2010

Mr Skelly

Applicant

And

Ms Huxford

Respondent

REASONS FOR JUDGMENT

1. These are long running proceedings relating to the child M born in 2007. 

2. Final orders in relation to parenting were made by consent on 17 September 2010.  Those orders were subsequently varied by orders made on 14 November 2011 with that variation being by consent and thereafter again varied by orders made on 29 May 2012.

3. Subsequent to the final orders being in place there have been ongoing difficulties between the parties that had led to various applications for contravention/contempt being filed by the father in relation to the mother’s asserted non-compliance with the orders.

4. However, on 8 October 2014 the mother filed a further application initiating proceedings seeking fresh orders in relation to the parenting arrangements for the child.  The father on 21 November 2014 filed a response to the mother’s initiating application seeking his own orders in relation to parenting for the child. 

5. As a consequence of the fresh proceedings the matter was allocated appointments for the purposes of child responsive intake interviews on 28 April 2015.  For the reasons more fully set out below the mother did not attend those appointments, although the father did. 

6. The court has been able to facilitate further appointments at a time when it is expected the mother will be able to attend and appointments have been listed for the mother to attend upon the family consultant at 2 pm on 25 June 2015 with both the mother and father and the child to attend upon the family consultant on 29 June at 9 am.  That will facilitate a child responsive memorandum being issued within a few weeks thereafter at which time the primary proceedings in relation to variation of parenting orders sought by both parties will follow the usual course for a Less Adversarial Trial hearing before a judge.

7. However, more urgent circumstances have occurred in the intervening period as set out in the father’s affidavit filed today. 

8. The father has filed an application today seeking interim parenting orders that in summary provide as follows:

   (1)That pending further order the child, [M], born on … 2007 live with the father;

   (2)That pending further order [the child] spend time with the mother as agreed between the parties, and unless otherwise agreed on a supervised basis as ordered by the court; and

   (3)That all previous orders that are inconsistent with orders made in the context of the application in a case be stayed until further order.

9. In support of the orders sought by him the father relies upon his affidavit filed today. 

10. He says that the parties separated in July 2009.  The child, aged 7 is the only child of the parties’ relationship. 

11. The mother has a history of psychiatric illness. On 25 June 2004 certain findings were made in proceedings in the District Court of New South Wales in relation to the mother’s hurt-on-duty claims as a police officer to the effect that the mother was suffering from major depression with generalised anxiety and panic disorder. 

12. The mother is currently residing in the NM Clinic at Suburb D.  The father is not aware of the mother’s circumstances other than as attested by Exhibit A being the email from Dr C, consultant psychiatrist.  In that email addressed to the listing manager, Dr C says as follows:

    I am the psychiatrist currently treating [Ms Huxford], who has been attending my clinic at [NM Clinic] since the latter half of 2014, prior to me she had been seen by my colleague, [Dr Q], who has subsequently left the practice. 

    Since February [Ms Huxford] has been struggling with her mood and when I reviewed her in early April I booked her off work due to an exacerbation of her symptoms, she further deteriorated and I had her admitted under my care to the [NM Clinic] as an inpatient in mid-April 2015. 

    She is currently still an inpatient and will be an inpatient for at least another week whilst I adjust medication. 

    Her current mood and functioning, in my opinion, preclude her from attending court (as well as work at present) on the 1^st May, I have completed a medical certificate to this effect (the medical officer had already completed a certificate under my instruction last week, but this has apparently caused some confusion for which I apologise).

    I can not as yet determine when [Ms Huxford] will be able to resume her normal duties, but I will be booking her off work until at least the middle of May 2015.

    Yours faithfully,

    [Dr C]

13. Clearly, as a consequence of the communication from the mother’s treating psychiatrist the mother is suffering some form of psychiatric illness sufficient to enable her not to function properly in the context of her normal work obligations, nor indeed to be able to attend court for the purposes of proceedings that were otherwise listed for hearing today. 

14. The father says that between late March and early April 2015 there were ongoing discussions between the parties in an endeavour to resolve the outstanding parenting issues, and thereafter on the morning of Wednesday, 15 April the father received an SMS communication from the mother informing him in the following terms:

    I’ve tried calling [the child] to check how he is and let you know I’ve been admitted to hospital with severe depression.  I will be there for at least two weeks to a month. 

15. The mother forwarded a further SMS message to the father on the afternoon of Thursday, 23 April 2015 saying:

    You will need to pick up [the child] from mum’s tomorrow afternoon.  I am going to be here for two more weeks so he is at best staying with you.  [Ms V] will get his bag and uniforms ready for you to collect.

16. As a result of the communication from the mother, the father instructed his solicitor to write to Dr C in relation to the more truncated medical certificate referred to in Dr C’ communication.  No response has been received to that communication, however, the further information requested has been provided by Dr C’s email communication dated 30 April 2015. 

17. The father collected the child from the home of the maternal grandmother on the afternoon of Friday, 24 April 2015. 

18. Since that time the child has been residing with the father at his home which is the former matrimonial home.  The father observes the child is happy and content living with him.  He continues to attend his same school each day, goes to soccer training on Thursdays, plays Saturday sport, and is supervised by the father at all times whilst in his care. 

19. The father observed that the mother failed to attend upon the family consultant interviews on 28 April 2015 as it appears now for good reason. 

20. The father proposes that until there is medical evidence to establish the mother is well enough to care fulltime for the child the child remain in his care.  He is able to take the child to and from school, and indeed he has the paternal grandparents available to assist him should there be any exigencies requiring their assistance. The child, he says, has a close relationship with the paternal grandparents. The father says he continues to remain living in the former matrimonial home where the child has his own room and the child appears to be well settled at that home for the moment.

21. The circumstances of the application coming before the court are clearly in circumstances of some urgency where the current parenting orders do not contemplate the present arrangements in respect of which the child is living.  It also appears that it is appropriate that the current parenting orders be suspended pending further order, and orders be made to reflect the current position, and to provide to the mother some time with the child until such time as her mental health circumstances are better known.

22. The law in relation to parenting is well settled in relation to both final and interim proceedings (Goode & Goode (2006) FLC 93-286).

23. Section 60B of the Act sets out the objects and principles underlying Part VII of the Act:

    (1)  The objects of this Part are to ensure that the best interests of children are met by:

    (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

    (2)  The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

    (a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

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

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

    (e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

    (3)  For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

    (a)  to maintain a connection with that culture; and

    (b)  to have the support, opportunity and encouragement necessary:

    (i)  to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

    (ii)  to develop a positive appreciation of that culture.

    (4)  An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

24. Section 60CA provides that:

    In deciding whether to make a particular parenting order the court is to regard the best interests of the child as the paramount consideration. 

25. Section 60CC that outlines the primary: subsection (2) and additional: subsection (3) considerations the court is to take into account in determining what is in the best interests of the child. 

26. Section 61DA of the Act provides:

    When making a parenting order the court must apply a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility. 

27. In the context of this matter the final orders made by the court by consent on 17 September 2010 provide for the parties to have equal shared parental responsibility.  The father does not seek to disturb that arrangement.  That order in all the circumstances will continue. 

28. Accordingly, it is not necessary for the court to consider whether the presumption applies.  Notwithstanding otherwise the court is in the usual circumstances where the court makes an order for equal shared parental responsibility required to consider whether equal time or substantial and significant time with each parent is in the best interests of the child and reasonably practicable. 

29. From the matters referred to above it is clear that even if the court was required to have regard to these considerations such orders in the context of the current matter are not in the child’s best interests.  The primary considerations in relation to the best interest test really are solely determinative of the orders sought by the father today. 

30. The primary consideration set out in section 60CC(2) are:

    (a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b)The need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.

31. More recent amendments to the legislation have provided that more weight should be attached to the protective concerns set out in section 60CC(2)(b). 

32. Whilst the Court is required to have regard to the additional considerations set out in section 60CC(3) – and the Court has had regard to each of those considerations in the context of this matter – the Court need not move otherwise than from the primary considerations in relation to the circumstances of the child as they are presently. 

33. There is no doubt that it’s appropriate, as best can be managed, that the mother’s relationship with the child continue and that continue to provide a meaningful engagement between the mother and child, but in protective circumstances as best can be managed by the father until such time as the matter can come back before the Court following the child responsive interviews or on further application, presumably, by the mother. 

34. However, the protective concerns set out in section 60CC(2)(b) are clearly indicative of an order confirming the child’s current circumstances living with the father, until such time as appropriate, medical evidence is available to consider whether the child should be restored to the mother’s full-time care or the child should have an ongoing time with the mother on a lesser basis, depending on the weight of the various protective concerns that are then known. 

35. Having regard to the best interest considerations set out section 60CC, the Court is satisfied that the best interests of the child are served by there being interim orders providing for the child, pending further order, to live with the father, and there be orders to facilitate the mother having some time with the father by agreement between the father and mother.  Failing agreement, and having regard to her uncertain psychiatric circumstance, it will be necessary for the mother to make application on short notice to the Court for such orders as she may be advised.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 May 2015.

Associate:

Date:  1 May 2015