FEDERAL CIRCUIT COURT OF AUSTRALIA
| TAYLOR & LETHBRIDGE | [2014] FCCA 2669 |
| Catchwords: FAMILY LAW – Children – presumption of Equal Shared Parental Responsibility rebutted – with whom child lives – consideration of un-supervised time conditional on the mother’s engagement with a treating psychiatrist. |
| Legislation: Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 61DAA, 61DAC, 64D, 64DA, 65DAA, 65L Federal Circuit Court Rules 2001, r.16.05(2)(a) |
| Goode v Goode (2007) 36 Fam LR 422 MRR v GR [2010] HCA 4 |
| Applicant: | MR TAYLOR |
| Respondent: | MS LETHBRIDGE |
| File Number: | BRC 4768 of 2012 |
| Judgment of: | Judge Lapthorn |
| Hearing dates: | 31 March 2014, 1and 2 April 2014 and 2 and 3 July 2014 |
| Date of Last Submission: | 27 August 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 20 November 2014 |
REPRESENTATION
| Solicitors for the Applicant: | The Applicant appeared in person |
| Solicitors for the Respondent: | The Respondent appeared in person |
| Counsel for the Independent Children's Lawyer: | Ms Lyons |
| Solicitors for the Independent Children's Lawyer: | Forest Glen Lawyers |
ORDERS
That all previous parenting orders be discharged.
That the father have sole parental responsibility for making decisions regarding the long term care, welfare and development of the child X born (omitted), 2007 including but not limited to:-
(a)The child’s health
(b)The child’s education
(c)The child’s religion
(d)The child’s indigenous culture
In the exercise of his sole parental responsibility (in non-emergent circumstances) the father:-
(a)Notify the mother by email in respect of the circumstances requiring a decision to be made and set out his proposed decision and brief reasoning for the decision;
(b)Seek input from the mother by return email within 7 days
(c)Advise the mother of his decision by return email within 2 days.
That the father promptly notify the mother by text message should the child be involved in a serious accident or be diagnosed as suffering from a serious illness.
That the child live with the father.
That this Order permits the mother to obtain information about the child’s health and education directly from any medical practitioner or school at her request and expense.
That the parents have liberty to attend school events such as concerts and parent teacher interviews to which parents are invited.
The mother is restrained and an injunction issue restraining her from attending the child’s school unless in circumstances of Orders 6 and 7 herein and from any before or after school care that the child attends while in the care of the father.
That the parents keep each other informed of their residential address, mobile telephone number and email address and will notify the other of any change within two (2) days.
That the mother communicate by telephone with X each Wednesday evening between 6:00pm and 6:30pm with the mother to make the call and the father to ensure X is available to take the call. Nothing in this Order requires the child to speak to the mother for 30 minutes.
That the mother’s time with the child pursuant…
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CaseChat Overview and Summary
The court was tasked with determining the appropriate parenting arrangements, including who should have parental responsibility for long-term decisions, where the child should live, and the nature and extent of the mother's time with the child. Crucially, the court had to consider the mother's diagnosed Type 1 Bipolar Disorder and its potential impact on her capacity to care for the child, as well as the need for her to engage in psychiatric therapy. The court also had to address communication protocols between the parents and the role of the Independent Children's Lawyer.
In its reasoning, the court discharged all previous parenting orders and made orders for the father to have sole parental responsibility for long-term decisions regarding X's care, welfare, and development. The child was ordered to live with the father. The mother's time with the child was made contingent upon her commencing and maintaining psychiatric therapy specifically targeted at her bipolar disorder, with detailed provisions for supervised contact initially, gradually increasing in duration and independence over time. The court also made orders regarding communication, information sharing, and the discharge of the Independent Children's Lawyer.
Orders
Orders of the court
1.
That all previous parenting orders be discharged.
2.
That the father have sole parental responsibility for making decisions regarding the long term care, welfare and development of the child X born (omitted), 2007 including but not limited to:-
(a) The child’s health
(b) The child’s education
(c) The child’s religion
(d) The child’s indigenous culture
3.
In the exercise of his sole parental responsibility (in non-emergent circumstances) the father:-
(a) Notify the mother by email in respect of the circumstances requiring a decision to be made and set out his proposed decision and brief reasoning for the decision;
(b) Seek input from the mother by return email within 7 days
(c) Advise the mother of his decision by return email within 2 days.
4.
That the father promptly notify the mother by text message should the child be involved in a serious accident or be diagnosed as suffering from a serious illness.
5.
That the child live with the father.
6.
That this Order permits the mother to obtain information about the child’s health and education directly from any medical practitioner or school at her request and expense.
7.
That the parents have liberty to attend school events such as concerts and parent teacher interviews to which parents are invited.
8.
The mother is restrained and an injunction issue restraining her from attending the child’s school unless in circumstances of Orders 6 and 7 herein and from any before or after school care that the child attends while in the care of the father.
9.
That the parents keep each other informed of their residential address, mobile telephone number and email address and will notify the other of any change within two (2) days.
10.
That the mother communicate by telephone with X each Wednesday evening between 6:00pm and 6:30pm with the mother to make the call and the father to ensure X is available to take the call. Nothing in this Order requires the child to speak to the mother for 30 minutes.
11.
That the mother’s time with the child pursuant to Order 15 herein is subject to the mother commencing and maintaining a course of psychiatric therapy with a psychiatrist of her choice with such psychiatrist to be registered with the Royal Australian and New Zealand College of Psychiatrists. With the therapy to be specifically targeted at treating and maintaining relapse prevention of the mother’s Type 1 Bipolar Disorder and the mother shall attend not less than three appointments, not less than 60 days apart and thereafter continue to attend as directed by her psychiatrist.
12.
In the event that the mother commences the psychiatric therapy prior to the discharge of the Independent Children’s Lawyer, that the mother advise the Independent Children’s Lawyer in writing of the name, address and phone number of the psychiatrist prior to her first appointment. If the mother does so after the Independent Children’s Lawyer has been discharged, that the mother advise the father in writing of the name, address and phone number of such psychiatrist prior to her first appointment.
13.
That these Orders provide authority for the father and Independent Children’s Lawyer (prior to her discharge) to obtain information from the mother’s treating psychiatrist regarding her attendance, compliance with treatment recommendations and prescribed medication as they may request from time to time.
14.
That these Orders provide authority to the mother’s treating psychiatrist or other treating medical practitioners to advise the father of any concerns regarding the mother’s mental health such that she may pose a risk to the child if having unsupervised time pursuant to Order 15 herein.
15.
In the event that the mother enters into a course of therapy as outlined in Order 11 herein and maintains that course of therapy she spend time with the child as follows:-
(a) For four hours each alternate Saturday with the first and last half hour to be supervised at the (omitted) Children's Contact Centre for a period of three months or not less than six visits.
(b) Thereafter for four hours each alternate Saturday for six visits
(c) Thereafter from 9:00am to 4:00pm each alternate Saturday for six visits
(d) Thereafter from 9:00am Saturday to 12:00 noon Sunday each alternate weekend for six visits
(e) Thereafter from 9:00am Saturday to 4:00pm Sunday each alternate weekend.
16.
Upon the commencement of the operation of Order 15(d) herein the mother spend time with the child on special days as follows:-
(a) For mother’s Day from 9:00am to 4:00pm
(b) From 12:00 noon to 4:00pm on the day of the child’s birthday if it falls on a weekend and if not on a weekend then on the Saturday nearest the child’s birthday.
(c) From 10:00am Christmas Day to 10:00am Boxing Day on odd numbered years (or at times to coincide with the (omitted) Contact Centre’s availability to changeover on these days) such time subject to the parents making a booking for changeover on those days.
17.
That all changeovers for the purpose of Orders 15(b), (c), (d), (e) and 16 herein take place at the (omitted) Children's Contact Centre and if the (omitted) Children's Contact Centre withdraws its service or the mother declines the use of the (omitted) Children's Contact Centre at a place nominated by the father in writing to the mother by text message or email.
18.
The mother’s time pursuant to Order 15 herein is suspended on the father’s Day weekend and on Christmas Day and Boxing Day if the child is in the care of her father pursuant to these orders on those days.
19.
Until such time as the mother engages in the course of therapy contemplated by to Order 11 herein or in the event she ceases such therapy, the mother’s time with the child be supervised for two (2) hours each alternate week on the following terms:
(a) The supervised time to occur at the (omitted) Children's Contact Centre;
(b) The parents comply with the terms and conditions of the Contact Centre attended and the parents are to share the costs of the centre attended.
20.
In the event that the (omitted) Children's Contact Centre in not able to accommodate the mother’s time with the child the periods of time are to occur at a contact centre nominated by the father.
21.
That the mother be at liberty to send cards, letters and gifts to the child for her birthday and Christmas to the father’s residential address if she is not able to spend time with the child on those days.
22.
That a transcript of the evidence and cross examination of Dr V be issued to the Independent Children’s Lawyer.
23.
That the Independent Children’s Lawyer be at liberty to provide a copy of all of Dr V’s reports in relation to the mother to the mother’s treating psychiatrist, as well as the transcript of Dr V’s cross examination, Family Reports by Ms C and a copy of these Orders and the Reasons for Judgment in this case. In the event that the mother does not commence treatment until after the Independent Children’s Lawyer is discharged, the father is at liberty to provide a copy of all of Dr V’s reports in relation to the mother to the mother’s treating psychiatrist, as well as the transcript of Dr V’s cross examination, Family Reports by Ms C and a copy of these Orders and the Reasons for Judgment in this case.
24.
That the Independent Children’s Lawyer be at liberty to provide a copy of all of Dr V’s reports, as well as the transcript of Dr V’s cross examination, Family Reports by Ms C and a copy of these Orders and the Reasons for Judgment in this case to the Chief Executive of the Department of Communities, Child Safety and Disability Services (through the Chief Executive’s delegates in the Court Services branch of the Department).
25.
That the mother and father not denigrate one another or their families to or in the presence or hearing of the Child.
26.
That the Independent Children’s Lawyer be discharged nine (9) months from the date of these Orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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