SPD & SRA
[2006] FMCAfam 158
•24 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SPD & SRA | [2006] FMCAfam 158 |
| FAMILY LAW – Children – variation of contact orders – consent orders – whether order should be made if mother is unable to care for child without assistance. PRACTICE & PROCEDURE – Finality of litigation. |
Family Law Act 1975 (Cth), ss.60B, 65E, 68F
McEnearney & McEnearney (1980) 7 Fam LN 5; FLC 90-866
| Applicant: | P D S |
| Respondent: | R A S |
| File No: | BRM 5304 of 2001 |
| Delivered on: | 24 March 2006 |
| Delivered at: | Brisbane |
| Hearing date: | 24 March 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr Suthers |
| Solicitors for the Applicant: | Suthers Lawyers |
| Solicitor for the Respondent: | Ms Moles |
| Solicitors for the Respondent: | Emerson Black Lawyers |
| Child Representative: | Ms Walsh, Queensland Legal Aid |
ORDERS
BY CONSENT orders in accordance with Minutes of Consent Orders.
In the event that the mother is unable to resume or continue the primary care of the child P A S born 30 March 1996 for any reason then either party may have liberty to apply to the Court for the variation, suspension or discharge of any order on three days’ notice.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 5304 of 2001
| P D S |
Applicant
And
| R A S |
Respondent
REASONS FOR JUDGMENT
The application before the Court concerns the child of the marriage between the husband and the wife. The child is named P. She was born on 30th March 1996. She will reach the age of 10 years on Thursday. The proceedings between the parties have arisen as a result of the fact that the mother has been diagnosed with bipolar affective disorder and has had several acute episodes of illness necessitating hospitalisation over the last almost 10 years.
The particular episode that brought these proceedings to the fore arose in October last year. It happens from time to time that the mother either finds that she is suffering from the onset of an attack of the illness and in most cases she has sufficient insight into this condition so that she can identify the symptomatology of it and has taken some steps to put in place a program so that
a)she can receive the necessary medical help, and
b)interim arrangements can be made for P's care.
The program has needed to be put into place because when the mother identifies the onset of the illness it can then come upon her quite quickly so that she has a very limited time in which to make insightful decisions in order to obtain for herself the appropriate treatment. The mother has provided to the Court a psychiatric report from her treating psychiatrist, Dr E M.
The father sought independent psychiatric information and the child P has been legally represented in these proceedings. The Child Representative from Legal Aid Queensland has arranged for a report to be made available by Dr B M who is a psychiatrist. Dr M's report dated 3rd March 2006 is before me. I have read it thoroughly and with great interest and in my view it provides a very useful insight into the situation.
I am certainly satisfied as to its independence and I am satisfied that the contents of the report are of great assistance to the Court. The parties, with the assistance of their legal advisers including the Child Representative, have negotiated a series of orders which are intended to resolve the matter and I have before me a document marked with the letter "A" representing Draft Minutes of Consent Orders.
There are a total of 17 such proposed orders and it is clear that the lawyers involved have worked in a cooperative manner to arrive at a regimen whereby the parents' concern about P's care in the event of the mother's incapacity through an onset of her illness can be safeguarded. I have read through the proposed orders and they provide for almost every eventuality.
In particular order 3 sets out the situation where the mother becomes incapacitated or is unable to care for the child so that the father is given notification forthwith and given the opportunity to travel to B to care for her. Order 4 provides for the situation where the father is unable to deal with this by travelling to Be and it provides for an alternative carer nominated by the mother and approved by the father for a period of up to two weeks with specific contact arrangements.
If the incapacity lasts for a period greater than two weeks then the father is then permitted to take P to his residence to live and it is intended that would continue until the mother is in a position to resume P's care. It should be made clear that there is evidence before me, particularly from Dr M's Report, about P's identification with the mother and it is not an issue before me that P should normally live with her mother, provided that her mother is in a position to assume the responsibility of that care.
The orders go on to provide for contact in the event of the mother's incapacity for any reason during the school holiday period. Provide for attendance upon Dr M, provide for a copy of the orders to be made available to the child's school which is an eminently practicable idea in these somewhat unusual circumstances and requires the mother to advise the father of nominated people to care for P in the event that she is not in a position to do so.
There are a number of specific issues orders requiring the parents not to criticise, denigrate each other and authorise the parents to obtain school reports, medical reports and other professionals. There are machinery orders relating to the discharge of the Children's Representative.
To my mind the orders proposed are ones which have been prepared with a great deal of care and with P's best interests well and truly foremost in the parties' minds. One sticking point, however, has arisen. Whilst there is no dispute that these orders should be entered into by consent, and I most certainly intend to make those orders by consent, the father seeks an order providing some additional guarantee.
He seeks an amendment to the orders, particularly consent orders 3 and 6, 7 relating to the quality of the care by the mother of P. This is not meant to relate to day to day parenting duties by the mother, but deals with a situation where the mother has perhaps been hospitalised as a result of an onset of illness and has been going through a recovery period.
Order 6 provides that the child be returned to the mother forthwith upon the mother's treating medical practitioner producing a letter or verbal confirmation to the father that the mother is able to resume primary care of the child. Mr Suthers, for the father, seeks some gloss on the word "care" to import independent care or care without assistance or unaided care or something similar.
Whilst during submissions by counsel I characterised this as possibly a "belt and braces" approach, it is not hard to empathise with the father's wish, first to get as great a guarantee as is possible about the welfare of his daughter. Second, to produce a set of orders which will cater for the foreseeable circumstances in so far as circumstances are foreseeable, in order to resolve the issue of P's care in the light of the mother's illness, without the necessity to return to Court on a regular basis.
It is easy to understand those concerns and like Ms Walsh, for the Children's Representative, it is easy to empathise with those concerns. There is, of course, a great benefit in finality of litigation and finality of litigation is something which is sought to be achieved, not just in financial matters between parties, but in matters relating to children. And of course the honourable Nigh J adverted to that very issue in a matter called McEnearney & McEnearney[1], a considerable amount of time ago, in 1980.
[1] (1980) 7 Fam LN 5; FLC 90-866
For the mother, Ms Moles submitted that there were a couple of issues which militated against modifying the orders in this way. There is of course first the question of precision and the exact meaning of either independent care or care without assistance or care unaided or whatever phrase was to be used. There was also the concern about the necessity for such an order in the light of the comprehensive suite of orders that have been agreed between the parties.
In discussions with the parties' legal advisers I raised the question of short liberty to apply in the event of an unforeseen circumstance. Over the last period of time, including the luncheon adjournment, I have given considerable thought to the resolution of this issue. I have done so first of all from the point of what is in the best interests of the child, but also from the point of doing justice to the parties.
Doing justice to the parties involves a consideration and a recognition of the father's concern for the welfare of his daughter and his understandable desire to spare her from difficulties or distress that may be occasioned with the mother suffering an attack of bipolar affective disorder. It is also necessary to do justice to the mother and justice to the mother involves giving her the opportunity to carry out her role of being a mother for an about to turn 10 year old child, and doing so in a way that allows her to carry out that role and exercise that responsibility with dignity and appreciation of her status as a parent.
I have considered the matter from those issues and the first consideration has to be is there a need for the orders, as extensive as they are, to be further modified. If there is a need, what modification can be made or definition can be made to improve the orders to bring about an improvement in the standard of care of P that the parties anticipate will be brought about by these orders.
There would need to be an order that was readily able to be understood, precise, and unambiguous and it should cater for a situation that the orders do not otherwise cover adequately. If such an additional order could not provide an answer to those questions, then the concern that I have is one that is to some extent at least raised by Ms Moles for the mother if an order was ineffective and was in fact harmful to P's relationship with the mother.
Against this Mr Suthers points out the very practical situation of the mother having an attack, being hospitalised, spending some time with the father and then the father having some concern that P should not be returned to the mother at a particular time. And of course, as he said, one is erring on the side of caution because that would mean that P would stay in the care of the father for a little bit longer and of course there is no suggestion that the father's ability to care for his daughter is in any way lacking.
Having the approached the situation in this way, I have looked again at proposed order number 6. Now apart from the spelling error that I see, the order provides:
That the child be returned to the mother forthwith upon the mother's treating medical practitioner producing a letter or verbal confirmation to the father that the mother is able to resume primary care of the child.
To my mind that order that is proposed provides a simple test, a simple factual situation which should bring about a return of P the care of the mother. The treating medical practitioner, be that a psychiatrist or a general practitioner or some other medical practitioner, either provides written confirmation or verbal confirmation to the father that the mother is able to resume primary care of P.
If that happens, well and good. If the medical practitioner is not able to do so, well then P would stay living with the father for the time being, or living with a nominated alternative carer as provided in the other orders. I am not satisfied that initially there is a need to go further than that. The father himself is a medical practitioner. The mother is a psychologist. They are both intelligent, well educated people.
This is not to my mind nominating the mother's medical practitioner as the person taking the role of the Court and deciding where a child should live. It is a method of allowing a medical practitioner to provide some sort of certification about the mother's health and the mother's ability to carry out the duty of a parent. If the Court specifies that the mother should only resume the care of P independently or entirely unaided, the concern that I have is that the Court is then imposing a greater obligation on this mother whom the Court would normally impose on other parents.
The Court does not normally require another parent in another situation to care for a child entirely unaided an provide some certification of his or her ability to do that. Would such an order if read strictly forbid the mother from getting a relative in to act as a babysitter while the mother went out for a couple of hours? If the mother were to suffer some injury such as a broken ankle or a sprained wrist and couldn't undertake climbing on a step ladder or carrying a heavy weight and needed someone to assist, would that lead to a situation where the mother should not be able to care for her child at all?
We do not impose that on other members of society. And there are other parents who suffer from some disability, either temporarily or permanently, where for a period of time at least they carry on looking after their child and sometimes require assistance from their father, mother, brother, sister or best girlfriend to provide some assistance. And all of Queensland and all over Australia there are parents who, from time to time rely on another trusted person to assist.
So my concern is that the imposition of too strict an order in that way does impose a greater obligation on the mother than we would normally expect of other parents. Does that mean that there would be no situation when the matter should not be looked at again? In my view, that would be dismissing the father's concerns completely out of hand.
There may well rise an unforeseeable event that means that the Court would have to take a fresh look at parenting arrangements, whether on a temporary basis or on a permanent basis. One would like to think that everything was foreseeable, but experience of adult life indicates that there are many things that have happened in life that one just cannot guess. Who would have thought in New York that on 10th September 2001 what was going to happen the next day? How many people come along to a Court exercising jurisdiction under the Family Law Act in a state of shock because their wife or husband has suddenly left them?
These things come out of the blue. Everyone would like to be able to produce orders that were absolutely iron clad, totally unnecessary to be added upon and totally unnecessary to be varied because they would cover every eventuality. The reality on life is that one cannot do it and one should not attempt to do it. There may well be a circumstance where the mother is not able to resume or continue the primary care of P and there could be any number of reasons, not just connected with having bipolar affective disorder.
There may be a circumstance where not just the father, but perhaps the mother, may need to come back to Court with some urgency, and I accept the fact that the mother's illness tends to happen with a degree of rapidity, to seek a variation of an order or a suspension of an order or a discharge of an order. So I propose to provide short liberty on three days notice to allow the parties to come back if such an eventuality arises and that they and their legal advisers, and I note the parties are well advised by legal practitioners, consider as necessary to come back to Court to make an interim or final order relatively quickly to deal with P's care.
So apart from making orders by consent in accordance with the minutes of consent orders, I propose to make this order.
I hope, ladies and gentlemen, that this will meet eventualities of sufficient gravity that will protect P's interests, to meet the mother's ability to care for P and the father's concerns to see that P is appropriately looked after.
I do propose to order a transcript of my reasons for this decision and a copy of it will be provided to the lawyers for both the mother and the father and to the Child representative. As I said, I make order by consent in accordance with the Minutes of the Orders and the other order I make also.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 6 April 2006
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