Sommerville & Norley

[2022] FedCFamC1F 141

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Sommerville & Norley [2022] FedCFamC1F 141

File number(s):	CSC 37 of 2014
Judgment of:	BAUMANN J
Date of judgment:	28 January 2022
Catchwords:	FAMILY LAW – PARENTING – Undefended Hearing – Where the mother has failed to appear on multiple occasions – Where the mother suffers from mental health issues and alcohol misuse – Final Orders made which do not prescribe any specific physical or telephone time between the children and the mother
Division:	Division 1 First Instance
Number of paragraphs:	11
Date of hearing:	28 January 2022
Place:	Brisbane
For the Applicant:	Litigant in person
For the Respondent:	No appearance
Solicitor for the Independent Children's Lawyer:	Lehmann Featherstone

ORDERS

CSC 37 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR SOMMERVILLE

Applicant

AND:

MS NORLEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	28 JANUARY 2022

THE COURT ORDERS ON A FINAL BASIS:

Parental responsibility

1.That the father have sole parental responsibility for the children Z born in 2005, X born in 2007 and Y born in 2010 ("the children").

2.That the father will keep the mother informed of all major long term decision he makes, by emailing the mother within seven (7) days of making any such decision. 

Lives with

3.That the children shall live with the father.

Time and communication

4.That the children spend time with and communicate with the mother at all times (including by telephone) as may be agreed between the parents in writing from time to time and taking into account the wishes of the children.

Education

5.That these Orders shall act as authority to the children’s school/s to provide to each parent information about the child’s education progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the child/children and other school communications ordinarily provided to parents, subject always to the discretion of the school.

Health

6.That these Orders shall act as authority to the children’s medical practitioners (including counsellors and psychologists) to provide to each parent information about the child/ren’s medical conditions, treatment and copies of medical records and reports, subject always to the discretion of the medical practitioner.

7.That each parent shall notify the other of any medical emergency, serious illness or injury to any of the children while in that parent’s care as soon as practicable and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.

Communication

8.That the parents shall notify the other parent within forty eight (48) hours of any changes to their telephone or email address.

Restraints

9.That the parents are restrained, and injunctions are hereby granted restraining each of them from denigrating the other parent to or in the presence of the children and they shall use their best endeavors to ensure that the children are removed from the presence of anyone denigrating the other parent.

10.That the mother be restrained and an injunction issue restraining the mother or her agents from removing the children from the father’s care or any agent or location where the father has placed the children.

11.That the mother be restrained and an injunction issue restraining the mother from attending at the father’s home or workplace and the children’s school/s without the prior written agreement of the father or an order of the court.

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

IT IS NOTED:

A.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 in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sommerville & Norley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

BAUMANN J:

1. Disputed parenting issues, initially in respect of three children, Z, who is 17 years old in 2022, X, who is 15 years old in 2022, and Y, who is 12 years old in 2022, have been before the court on a number of occasions since the Applicant father, Mr Sommerville, and the Respondent mother, Ms Norley (also known as Ms B), separated as far back as 2012.  It is not necessary in these reasons to deal with the full history, save to say that in extensive proceedings before the Federal Circuit Court (as it was then known), in particular before the experienced Judge Willis in Cairns, there have been orders made in the past in the absence of the mother due to her failure to appear.  The last orders that were made by Judge Willis were made as long ago as 17 July 2016.  At that stage, the orders made it clear that if the mother consumes alcohol beyond the legal limits, which has been a difficulty for the mother, then certain consequences followed. 

2. The proceedings were reinstituted by the father in June 202,nearly five years after those final orders and the matters were transferred from the Federal Circuit Court of Australia to this Court shortly thereafter.  Experienced Independent Children's Lawyer, Ms Wendy Lehmann in Cairns, has been involved with the matter.  Suffice it to say, that the difficulties in this case arise from the mother’s functioning.  Whilst there is a significant amount of material in the early part of the proceedings in relation to the mother, Ms Lehmann also procured a family report from Ms D which is before the Court and dated 30 November 2021, and a report from psychiatrist Dr C filed 2 December 2021. 

3. The psychiatric report, in particular, identifies that the mother self-reported significant issues in relation to consumption of alcohol; that she had been confirmed as having a major mental illness and has been diagnosed with post-traumatic stress disorder in the context of a major motor vehicle accident in 2020.  She has also had difficult personal relationships after the relationship with the father in this case ended.  I do not repeat the comments entirely in the report of the psychiatrist, save to identify that in her recommendations, the psychiatrist says:

   Ms Norley will benefit from psychiatric lead, holistic multidisciplinary mental health care and interventions.  She will require biological management with an appropriate dose and possibly augmentation or combination of mood stabilising and psychotic medication to address her significant mental health symptomatology.  She will require regular focused psychological interventions and other social interventions necessary.  Consideration should be given to acceptance and commitment therapy.  She has engaged with an addiction specialist to address alcohol use disorder.  She should remain engaged with these services. 

4. Whilst the psychiatrist indicated that she saw some benefit for the mother in her seeing the children on a regular basis, that could only occur:

   …in a safe, preferably supervised capacity with slow increments in time, with regular reviews of the effect these visits have on both her and the children.

5. Of course, the psychiatrist did not see the children.  Ms D did.  Her report identified on page 17 that “clearly, the mother needs to address her personal issues to do with her alcohol use.”

6. On the basis of the observations and investigations, Ms D, in her family report, recommended supervised time only with the mother, conditional on a number of factors.  With the benefit of these reports and a further suggestion (at that time) that the mother had relapsed in her use of alcohol, the matter was listed for an undefended hearing today.  The mother did not appear.  The father, in all his appearances before me, has shown a degree of empathy for his former wife’s mental health challenges and has, in my view, consistently revealed a hope that the mother’s functioning will improve to such a level that the children can have a meaningful relationship with her. He informed the court that the mother has returned to alcohol misuse and that sadly the boys, X and Y, have witnessed the mother’s erratic behaviour under the effect of alcohol in recent weeks.  Although there is an older sibling of the boys, Z, no orders are sought in respect of that child who is living somewhat independently, although currently with her father and her brothers. 

7. The mother has not appeared today; however with the assistance of a community group in Cairns she did file a recent affidavit.  The affidavit is telling in its candour, and although I accept it was prepared, no doubt, with the assistance of legal or other advice, concludes with the following observations:

   (a)The mother confirmed that she had relapsed into the use of alcohol and had been hospitalised for a period, being released on 20 January 2022; and

   (b)The mother acknowledges her difficulties, and her solution can be seen in the orders sought within her affidavit, which were as follows:

   17.I am seeking a lengthy adjournment of say 12 months, to allow me to address housing, for my mental health to stabilise so that I am not tempted to use alcohol as a coping mechanism. 

   18.I am seeking interim orders to commence phone contact with Y and X initially and then move to supervised time.  Once I have secured stable accommodation, I wish to move towards unsupervised time.

8. I, at this stage, do not ignore the fact, as the Court became aware of today in the respect of a younger child, E, who is now seven years of age, that orders were made on 6 January 2022 placing that child in the custody of the Chief Executive (Child Safety) for a period of one year.  I have no doubt that that order would have been distressing to the mother

9. Sadly in this case although the father, and to some degree the Court, has some empathy for the mother’s difficult situation, the Court is required to make orders in the best interests of the children.  That is the paramount consideration.  Ongoing litigation hanging over the head of these children who, as I have already noted, were the subject of recent interviews by a family report writer, is not developmentally advantageous for them.  As the father has indicated, they have sadly witnessed their mother, he would say, in a less than satisfactory condition.  I am sure they have sympathy for their mother as well, but at their age they are entitled to look to their future education and their needs to try and develop a platform for their future life as young adults, much in the way that Z is trying to do now. 

10. It is in the best interests of these children that these proceedings come to an end, noting that if the mother is able to produce appropriate evidence at a future point in time that she is no longer misusing alcohol for a sustained period (one might think at least twelve months to two years) and has otherwise, as a result, stabilised her housing, her employment, her income, and her lifestyle generally, then of course the court can always consider applications made by her for specific orders in relation to spending time or communicating with X and Y.  Of course, the wishes of the children as they get older – and they appear to be mature, well settled boys in the care of their father – will need to be taken into account at that time. 

11. Accordingly, I make the orders which appear at the commencement of these reasons.  They do not prescribe any specific physical or telephone time between the children and their mother, leaving it generally to the initiation of the children.  I have a confidence that the mother, if she is able to demonstrate that she is dealing with these long-term alcohol and subsequent mental health issues in a way that she does not present as a risk to her children, that the father would facilitate and support meaningful time.  The ball very much lies in the court of the mother.  For the reasons which I have given, the orders which appear of the commencement of the judgment, now delivered orally, are in the best interests of those children, and are supported by the father and the Independent Children’s Lawyer. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       28 January 2022