Tanner & Tanner

[2008] FamCA 224

FAMILY COURT OF AUSTRALIA

TANNER & TANNER [2008] FamCA 224

FAMILY LAW  -  PARENTING – case guardian – wife’s psychiatric condition – car accident involving child – suspension of orders – time and communication in future.

Family Law Act 1975 (Cth)

HUSBAND: MR TANNER

WIFE: MRS TANNER (by her Case Guardian Mrs Smith)

FILE NUMBER: MLF 1888 of 2005

DATE DELIVERED: 14 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE:

REPRESENTATION

SOLICITOR FOR THE HUSBAND: Ms. Humphreys, Kennedy Wisewoulds

COUNSEL FOR THE WIFE: Mr P.A. Marchetti

SOLICITOR FOR THE WIFE: Forte Family lawyers

Orders

1. That paragraphs (1) and (2) of the orders made herein on 6 March, 2008 be discharged. 

1. That until further order, paragraph (1) of the orders made herein on 27 November, 2007 be varied to provide that the husband have sole parental responsibility for matters relating to the health and education of the children of the marriage E born … August, 1990, S born … February, 1994 and J born … September, 2001.

1. That until further order paragraphs (3) and (4) of the orders made herein on 27 November, 2007 be suspended.

1. That until further order the wife spend time and communicate with J as follows :

   (a)for so long as she remains an inpatient in the A Clinic (or other hospital or clinic), by telephone on each second day and at such additional times as initiated by the husband;

(b)as and from the first Sunday after her release from the A Clinic (or other hospital or clinic) PROVIDED THAT it not be before Sunday 23 March, 2008 :

(i)for two hours on each Sunday, at a time to be agreed between the parties and the supervisor, and that such contact be supervised by maternal aunt B Smith or L Smith, or such other person as is agreed between the parties, and prior to a person undertaking his or her first period of supervision pursuant to these orders, he or she sign an undertaking (to be filed by the wife) that he or she will be present during the whole of the period J is with the wife and will terminate the period of time in the event J becomes distressed;  and

(ii)reasonable phone communication,  PROVIDED THAT  it not be more frequent than that described in paragraph (4)(a) hereof. 

1. That until further order S spend time and communicate with the wife as determined by S and without limiting the generality of this order :

   (a)S be at liberty to spend time with the wife during periods in which J spends time with the wife pursuant to the provisions of paragraph (4)(b)(ii) hereof;  and

   (b)the husband take all reasonable steps to facilitate S spending time with the wife and communicating with the wife.

1. That the maternal grandparents have reasonable telephone communication with J and S and be at liberty to spend time with J and S during periods they are with the wife.

1. That the applications of the parties for final parenting orders which were dismissed on 27 November, 2007 be reinstated. 

1. That pursuant to s.68L(2) of the Family Law Act 1975 the interests of the children S born … February, 1994 and J born … September, 2001 be independently represented by a lawyer AND IT IS REQUESTED  that Victoria Legal Aid arrange such independent representation.

1. That forthwith upon appointment by Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

1. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

IT IS REQUESTED

1. That Victoria Legal Aid give consideration to reappointing the independent children’s lawyer who was discharged by orders made herein on 27 November, 2007. 

IT IS FURTHER ORDERED

1. That the further hearing of the applications for interim parenting orders be otherwise adjourned to 24 April, 2008 at 10:00 am.

1. That no later than 18 April, 2008 each of the parties advise the solicitor for the other and the independent children’s lawyer, by letter, of the interim orders which will be sought on the adjourned date, and provide the Court with a copy of each such letter on the adjourned date. 

1. That on or before 18 April, 2008 each of the parties file and serve any additional affidavits on which he or she intends to rely and without limiting the generality of this order, the wife file and serve an affidavit of her treating psychiatrist and an affidavit of one or more of the people who have supervised her time with J, in the event J has spent time with her pursuant to these orders. 

1. That the wife attend upon Dr. E on a date to be advised for the purpose of the preparation of an updated report and that the issue of the costs of such attendance and report be reserved to the adjourned date. 

1. That the reasons for judgment this day be transcribed and copies made available to the parties.

1. That pursuant to s.62B and 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, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

1. That the preparation of these orders be expedited.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

AND THE COURT NOTES

That the paragraph numbers referred to in paragraphs (2) and (3) hereof refer to numbers in the annexure to the final parenting orders made herein on 27 November, 2007.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 1888 of 2005

MR TANNER

Husband

And

MRS TANNER

Wife (by her Case Guardian Mrs Smith)

REASONS FOR JUDGMENT

1. As the parties are aware, the court has had significant involvement with the family since proceedings were initiated and the matter has been in my docket since about November 2007.

1. In summary, the parties have three children:  E, born in August 1990, S, born in February 1994, and J, born in November 2001.  The mother has experienced significant psychiatric illness since about 2003.  It is that which precipitated the separation of the parties in 2005, after when the Department of Human Services intervened after the mother made a suicide attempt when J was in her presence.

1. The children have lived with the husband since that time.  There was lengthy, contested litigation in this court in relation to parenting orders.  That concluded when final parenting orders were made, by consent, on 27 November last year.  Pursuant to those orders, the parties have equal shared parental responsibility for the children.  They live with the husband.  E, who will be 18 in August, was given the autonomy to decide for herself the contact she has with her mother.  Orders provided for the two younger children to spend time with the wife on each alternate weekend (from 10:00 am. Saturday to the commencement of school on Monday) from after school on Wednesday to the start of school on Thursday, during half school holidays and on other special days.

1. The property proceedings between the parties, and the wife's application for spousal maintenance, were listed before me for trial last week.  A decision in those applications is reserved.  The wife's psychiatric condition is relevant to those proceedings, having regard to the s.75(2) factors.  Thus, some evidence of her health was before the court at that time. 

1. Importantly, shortly prior to the financial applications being listed for trial, the wife's mother, Mrs Smith, was appointed a case guardian for the wife, the evidence then satisfying the court that it could not be confident the wife understood the nature and effect of the litigation, or was in a position to give instructions. 

1. Very reasonably, the solicitors for the wife agreed that it would be appropriate for the wife’s mother to take on that role, even though she was a witness.  I said at the time, that - save for some relatively minor matters - there was not much that was contentious about the evidence the wife’s mother was to give in the financial trial. 

1. The role of case guardian is an onerous one.  I am sure it has been willingly undertaken by the wife’s mother, but is undertaken through necessity.  She may face some difficulty, as matters have eventuated, having regard to her own relationship with her grandchildren, her concern for her daughter and the role she has to play in this case. 

1. Judgment in the financial case was reserved last Tuesday.  The evidence, which I understand is common ground, is that the wife had little or no contact with the children in January 2008, as they were on holidays with their father for two weeks at the beginning of the month, and the mother was then hospitalised for 10 days.  She also experienced some stress, probably as a result of the proximity of the trial, and the wife’s mother deposed that the wife elected not to spend time with the children for a period, because she felt she could not properly care for them.  She did see J and S on some five occasions;  I understand the last, prior to last week, was on S’s birthday, which is in the latter half of February. 

1. S and J last week spent an afternoon and night with their mother.  S went from her mother's home to school.  The wife was driving J to school when the car which she was driving hit a pole, square on, with sufficient force to damage the foot of the pole.  Subpoenaed materials suggest it took some 20 minutes to extract both occupants from the car. 

1. Little attention has been paid in the material to the wife's injuries.  There is some mention in her own mother's affidavit of the wife receiving a blow to the head and, no doubt, bruising.  J was taken to the Royal Children's Hospital, initially in fairly dire circumstances.  Fortunately his injuries were not as severe as they seemed and he was well enough to be released from hospital after a short stay.  Indeed, he is well enough to have returned to school.  The husband’s evidence is that he is having nightmares and is teary, which would be expected in those circumstances, regardless of a child’s parental relationship.

1. Much of the evidence before me - and that evidence is in the form of an affidavit sworn by the husband, an affidavit sworn by the wife’s mother and material tendered from the Alfred Hospital file - goes to the circumstances of the events last week and whether the car crash was accidental or intentional.  Some goes to the question of whether this was a suicide attempt by the mother.  There is no doubt that she has attempted suicide in the past, although there is some disagreement between the parties as to the number of attempts, and the timing of them, particularly in more recent times.  I do not doubt the wife’s parents must be particularly distressed at this allegation, which they believe to be without foundation.

1. As I said to counsel in the course of discussion, the court must focus on the fact of the accident, and the circumstances of the accident, as evidenced by the photos.  Neither the court nor the parties can conclusively know what happened on that day.  A police investigation is in train and I was told that J was interviewed by police, last night. 

1. From the wife's side of the bar table it is submitted that the fact she has not yet been interviewed, and that witnesses' statements have not been prepared, suggests the investigation is not a priority for police.  Having considerable judicial experience in cases arising from accidents, in another jurisdiction, I can say that no conclusions should be drawn about the police investigation at this time.  Everyone must await the outcome of that investigation.  I draw no adverse inferences against the wife, or the other way.

1. On an urgent, oral, ex-parte application on Thursday afternoon, I suspended the orders providing for the mother to spend time and communicate with the children, save as agreed in writing by the husband or as requested by the medical practitioner in charge of J’s care.  A copy of that order was served to the CEO of the Royal Children's Hospital.  From what I have been told today, it seems the hospital or the doctor in charge of J’s care took the view the order precluded the mother from having any communication with J, even by phone.  That is clearly not the intent of the order, which is clear on its face. 

1. The subpoenaed material records that on the day J was taken to hospital Dr S, who was treating him, rang the Alfred Hospital, where the wife was then an inpatient (she was taken there by ambulance after the accident) to say he was attempting to get a phone to J so he could speak with his mother. Evidence may show in due course that Dr. S did that because J was because was calling for his mother.  It would not be surprising if he were.  It may be that Dr S thought some contact between mother and son would be a useful therapeutic intervention for J, given the circumstances, and J may also have been worried about his mother. 

1. The mother was in the Alfred Hospital for a few days.  On 11 March she was transferred to the A Clinic.  Each of the parties' lawyers has relied on parts of the Alfred Hospital records which support the case he or she seeks to make.  I am not critical of them for that.  In my judgment, the only conclusion the court could draw at the moment from the hospital notes is that the wife's psychiatric and emotional state is very unstable; that is, it is up and it is down.  The court will need expert opinion from her treating practitioners as to her state, when it has stabilised.  It is only around a week since the accident, and the wife has grappled with debilitating psychiatric illness for four or five years.  Her predicament is of concern.  That said, the focus of the court must be on the best interests of the children and, particularly today, J. 

1. The court has to balance, even when hearing an interim application like this, the importance of a child having a meaningful relationship with both parents and with the importance of protecting the child from harm.  As these are interim proceedings, I cannot make findings on contested facts.  Much is contested, although the bare bones are not. 

1. The application of the wife is that the suspension of the orders for time and communication be lifted and that she be able to spend time with J and S, on a supervised basis, for two or two and a half hours at a time, at relatively frequent intervals, and that the children be able to visit her in hospital until she is released.  The supervisors proposed are the maternal grandparents, who are again in court; her sister, B, who has had some contact with the father since J was hurt; or another sister, K.

1. The father initially sought no communication or time in the interim, but he would be comfortable with some phone communication between J and his mother and, indeed, phone communication between J and the paternal grandparents.  He does not support any time with the mother at the moment, supervised or unsupervised.  If it is to be supervised, he expressed some concern about the maternal grandparents playing that role and advanced - I do not know whether advice has been given to her of it - the wife of another of the wife's brothers.  My recollection is that the wife is one of many children.  So this is a big family.

1. The father also seeks that the order for shared parental responsibility, or at least aspects of it, be suspended until the wife's condition and prognosis is known.  The present reality is she has a case guardian.  That does not mean she is voiceless in these proceedings, but it does mean the court should be cautious before making assumptions about her capacity to have input into long‑term decisions at the moment. 

1. The advancing of proposals for the wife’s time to be supervised by family members is a responsible indication of the need to err on the side of caution.  The wife initially referred to the potential for supervision by a member of staff at the A Clinic but that application is not pressed.  I make it clear I would only consider such an order if the specific members of staff provided written consents to the court.  In my experience, staff have a difficult enough job fulfilling their professional obligations on their shifts, without undertaking supervision of time between a parent and child. 

1. I take into account the primary considerations (in brief, the balance between maintaining a meaningful relationship and protection from harm) and I take into account the different ages of J and S, and their different needs. 

1. Doing the best I can with the evidence presently before the court, I am satisfied that the children's best interests will be met by arrangements as follows.  So long as the wife is an inpatient at the A Clinic, or another clinic, there will be provision for phone contact on each second day between J and his mother.  The husband will be at liberty to terminate that contact if J becomes upset.  There will be provision for the husband to initiate additional phone contact at J’s request, or if he forms the view that it would be a good idea, even if J is not explicitly requesting it. 

1. Once the mother is well enough to leave the clinic, there will be a provision for supervised time on each Sunday, for a period of two hours, supervised by her sister B.  In saying that, I make no judgment about the other supervisor proposed.  This is a pragmatic decision.  The mother’s sister has been involved in discussions with the husband.  She is not the case guardian.  It is important that both sides of the family have confidence in the person who is to supervise and the mother’s sister is advanced by both.  These orders will be on foot for about six weeks.  While supervision can be an onerous obligation, these orders will operate for a relatively short time.  I make it clear that an order in that form does not preclude other family members being present when J is seeing his mother.  If the grandparents or other family members want to be there, that is absolutely fine, and can normalise J’s time with his mother. 

1. For S, I take into account her age.  I also take into account the evidence adduced in the trial about her present situation.  She is a vulnerable child.  Orders will provide for her to attend with J, if she is comfortable about doing that;  J too would probably benefit by his older sister accompanying him.  The order does not require her to spend time with her mother;  it makes it clear that she may spend time with her.  Her time with her mother will otherwise be, at this stage, as initiated by her, and that will include phone contact.

1. Orders will also provide for the husband to facilitate phone calls between the maternal grandparents and J.  J needs to know he is still part of that large, extended family.  Everybody must realise the limitations of phone calls with young children; sometimes they like talking, sometimes they do not.  The focus has to be on J and not on the adults' perception of the adequacy of arrangements. 

1. In terms of case management, I propose to reinstate the application for parenting orders I dismissed last year.  It is sophistry, but it will save money.  Before the next hearing date the parties should exchange, by letter, the proposals that will be advanced before me.  That, too, can keep expense down.  By then it is to be hoped there will be more certainty about J’s circumstances and about the wife's health.  In saying that, I do not mean to exclude S from this discussion, but different considerations apply to each of the children.

1. The matter will be listed before me on 24 April at 10:00 am.  Each of the parties may put additional material before the court.  I would suggest, subject to submissions to the contrary by counsel for the wife, that evidence from the wife’s treating psychiatrist will be essential, together with some evidence from the wife’s sister as to the time the wife has had with the children pursuant to these orders. 

1. I will make an order for an updated report by Dr E but only so that a booking can be made.  It is possible that, having considered the evidence before the court on the next date, I will vacate that order.  Appointments can be booked and reconsidered in the light of the evidence on the adjourned date, including Dr R’s evidence or other psychiatric evidence.  I will reappoint the independent children's lawyer.

1. There are some aspects about the wife's treatment, as described in the evidence adduced in the trial of the financial applications, which are of concern to me and which may need to be considered by the professionals involved if the children’s matters require further judicial time.  I appreciate these are enormously sensitive issues but I flag it through concern to ensure that the wife’s treatment is optimal.  In the course of the trial I read Dr E’s opinion and also heard evidence of the very significant therapeutic interventions undertaken with the wife.  One could say that, to a significant extent her treatment forms the core of her life at the moment.  Her mother described a combination of appointments, therapies and other interventions, mainly related to the wife’s psychiatric illness but also for other health problems.  Nowhere was there any evidence of any contextual, therapeutic intervention arising from the evidence that the wife was sexually abused as a child.  It is referred to in Dr E’s report, as is the distress of the wife when it was raised.  It may well be taken into account in the wife’s treatment regime but in a case like this there would often be some evidence of contextual and parallel interventions, and the lack of that evidence caused me some concern.

1. Let me make something clear.  I do not for a moment suggest that any of the children are at risk as a result of the sexual abuse of their mother.  I do not want to raise a spectre that could suggest concern that the wife would treat her children in that abusive way.  That is not where my concern lies.  My concern lies with her ongoing treatment given the possibility that orders could make her time with the children conditional on certain treatment options.  I hope that some attention can be given to this issue.  There may well have been many interventions of which I know nothing.

1. In the short term, I propose that, until further order (which will be the adjourned date at this stage) the husband have responsibility for education and medical matters.  An order will provide that he keep the wife informed in respect of those matters, and that must be done.  The order will allow any major decision to be made by the husband in those areas in the short term but the general order for equal shared parental responsibility remains on foot.

I certify that the preceding
32 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.