Thayer & Caville
[2015] FamCA 777
•17 September 2015
FAMILY COURT OF AUSTRALIA
| THAYER & CAVILLE AND ORS | [2015] FamCA 777 |
| FAMILY LAW – CHILDREN – Final parenting – Where the mother was an inpatient at a psychiatric facility at the time of trial – Where the second and third respondents are the maternal aunt and maternal great-grandmother – Where the parties had reached an in principle agreement for an existing weekabout arrangement to continue at the conclusion of the trial – Where the issues narrowed to the specificity of the arrangement from 2017, the surname of the children and the time to be spent with the mother – Whether restrictions should be placed on the time spent with the mother and certain members of the maternal family – Best interests of children – Right of the children to enjoy their Aboriginal culture – Orders made hyphenating the children’s surname – Orders made for the mother to spend time with the children as agreed between, and under the supervision of, the second and third respondents. |
| Family Law Act 1975 (Cth) s 60CC |
| APPLICANT: | Mr Thayer |
| FIRST RESPONDENT: | Ms Caville |
| SECOND RESPONDENT: | Ms B Caville |
| THIRD RESPONDENT: | Ms C Caville |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Mowbray |
| FILE NUMBER: | WOC | 602 | of | 2013 |
| DATE DELIVERED: | 17 September 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Stevenson |
| HEARING DATE: | 20-24 July 2015 |
REPRESENTATION:
| COUNSEL FOR THE APPLICANT: | Mr Fowler |
| SOLICITOR FOR THE APPLICANT: | Bailey Mullard Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms Mahony |
| SOLICITOR FOR THE 1ST RESPONDENT: | Women’s Legal Service NSW | |
| COUNSEL FOR THE 2ND AND 3RD RESPONDENTS: | Ms Saw | |
| SOLICITOR FOR THE 2ND AND 3RD RESPONDENTS: | Shoal Coast Community Legal Centre |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Alexander |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Verekers Lawyers |
Orders
All existing orders in relation to the children:
·D born … 2007
·E born … 2009
·F born … 2011
(“the children”) are discharged.
The father and the second and third respondents (jointly) (to be referred to as “the maternal parents”) have equal shared parental responsibility for the children.
The maternal parents notify and keep informed the mother of all long term decisions which affect the care, welfare or development of the children.
The parties do all things and execute all documents required to cause the children to be known as:
D Caville-Thayer
E Caville-Thayer; and
F Caville-Thayer.
The father and the second respondent approach the Registrar of Births, Deaths and Marriages in the State of New South Wales to have such changes of names recorded on each of the children’s Birth Certificates, without the need for the mother’s written consent.
The father and the second respondent be at liberty to apply for and obtain Birth Certificates from the Registrar of Births, Deaths and Marriages in New South Wales for each of the children namely D born … 2007, E born … 2009 and F born … 2011, without the need for the mother’s written consent.
The father has sole responsibility for making decisions concerning the children’s day to day care, welfare and development during the times that the children are living with or spending time with him.
The maternal parents have sole responsibility for making decisions concerning the children’s day to day care, welfare and development during the times that the children are spending time with them or with the mother.
The children will live with the father at all times when they are not living with or spending time with the maternal parents.
The children will live within the G Town region.
Unless otherwise agreed by the father and the maternal parents, each of the children are to be enrolled and continue their attendance at H Town Primary School.
The children will spend time with the maternal parents as follows:
(a)from the conclusion of school on Thursday until the commencement of school on Thursday morning in the following week; and
(b)at such other or different times as may be agreed between the father and the maternal parents.
The children will spend time with the mother as agreed between the mother and the maternal parents, provided that:
(a)the mother is deemed by the maternal parents to be free of the influence of alcohol and/or drugs and appears to be in stable mental health; and
(b)all such time is monitored by either or both of the maternal parents.
Notwithstanding any other Order, the children will spend time with the father on the following occasions of special significance:
(a)
from 2.00 pm on Christmas Day until 2.00 pm on Boxing Day, in
even-numbered years;
(b)
from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day, in
odd- numbered years;
(c)
from 2.00 pm on Easter Saturday until 2.00 pm on Easter Sunday, in
odd-numbered years;
(d)
from 2.00 pm on Easter Sunday until 2.00 pm on Easter Monday, in
even-numbered years;
(e)from 5.00 pm on the middle Saturday of the Australian Capital Territory gazetted school holiday periods following Terms 1, 2 and 3 in each year, until the commencement of school on the first day of the new school term;
(f)for one-half of the Australian Capital Territory gazetted Christmas school holiday periods in 2015, 2016 and 2017 as follows:
(i)the children will spend alternate one week blocks of time with the father and the maternal parents, commencing the first week with the father from the conclusion of school on the last day of the school term until the second Saturday of the holiday period; and
(ii)thereafter with the maternal parents in the following and each alternate week with changeover to occur at 9.00 am each Saturday.
(g)for one-half of the Australian Capital Territory gazetted Christmas school holiday periods from the end of 2018 as follows:
(i)in years when Christmas Day is in an even-numbered year, from the conclusion of school on the last day of the school term until 5.00 pm on 8 January; and
(ii)in years when Christmas Day is in an odd-numbered year, from 5.00 pm on 8 January until the commencement of school on the first day of the new school term.
(h)that, if Father’s Day falls when the children are in the care of the maternal parents in accordance with these Orders, then the maternal parents’ time with the children is to be suspended from 5.00 pm on the day prior to Fathers’ Day until the commencement of school on the Monday immediately following the Father’s Day weekend; and
(i)if any of the children’s birthdays fall when the children are spending time with the maternal parents, then their time will be suspended for a period of three hours on each of those days as agreed between the parties, and, in the absence of agreement, from 3.00 pm until 6.00 pm.
Notwithstanding any other Orders, the children will spend time with the maternal parents on the following occasions of special significance:
(a)
from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day in
even-numbered years;
(b)
from 2.00 pm on Christmas Day until 2.00 pm on Boxing Day in
odd-numbered years;
(c)
from 2.00 pm on Easter Sunday until 2.00 pm on Easter Monday in
odd-numbered years;
(d)
from 2.00 pm on Easter Saturday until 2.00 pm on Easter Sunday in
even-numbered years;
(e)
from 2.00 pm on Easter Sunday until 2.00 pm on Easter Monday in
odd-numbered years;
(f)from the conclusion of school on the last day of Terms 1, 2 and 3 until 5.00 pm on the middle Saturday of the Australian Capital Territory gazetted school holiday periods following Terms 1, 2 and 3;
(g)for one half of the Australian Capital Territory gazetted Christmas school holiday periods in 2015, 2016 and 2017 as follows:
(i)the children will spend alternate one week blocks of time with the father and the maternal parents, with the time for the maternal parents commencing at 9.00 am on the second Saturday of the holiday period; and
(ii)thereafter with the maternal parents for each alternate week with changeovers to occur at 9.00 am each Saturday.
(h)for one-half of the Australian Capital Territory gazetted Christmas school holiday periods from the end of 2018, as follows:
(i)in years when Christmas Day is in an odd-numbered year, from the conclusion of school on the last day of term until 5.00 pm on 8 January; and
(ii)in years when Christmas Day is in an even-numbered year, from 5.00 pm on 8 January until the commencement of school on the first day of the new school term.
(i)if Mothers’ Day falls during a time when the children are in the care of the father in accordance with these Orders, then his time with the children is to be suspended from 5.00 pm the day prior to Mothers’ Day until the commencement of school on the Monday immediately following the Mothers’ Day weekend;
(j)if any of the children’s birthdays fall when the children are spending time with the father, then his time with the children is to be suspended for a period of three hours on each of those days as agreed between the parties, and, in the absence of agreement, from 3.00 pm until 6.00 pm; and
(k)during NAIDOC week each year, the children are to spend both weekends at the commencement and conclusion of that week with the maternal parents, from the conclusion of school on Thursday until the commencement of school on Monday.
For the purposes of the implementation of these Orders:
(a)on school days, the parties will effect changeovers at the children’s school; and
(b)
on non-school days, the parties will effect changeovers at the
Coles Supermarket at I Town, unless otherwise agreed between the father and the maternal parents.
The father will ensure that the maternal parents or either of them are kept informed as soon as reasonably practicable of:
(a)any serious medical condition or hospitalization of any of the children while they are in his care;
(b)any medication(s) which have been prescribed for the children;
(c)any appointments for the children with a specialist or general medical practitioner, psychiatrist, psychologist, counsellor or therapist;
(d)any social, school or religious functions which the children are to attend; and
(e)his residential address and telephone number.
The maternal parents will ensure that the father is kept informed as soon as reasonably practicable of:
(a)any serious medical condition or hospitalization of any of the children while in their care;
(b)any medication(s) which have been prescribed for the children;
(c)any appointments for the children with a specialist or general medical practitioner, psychiatrist, psychologist, counsellor or therapist;
(d)any social, school or religious functions which the children are to attend; and
(e)their residential address and telephone number.
For the purposes of sharing information in relation to the children, the parties will utilise:
(a)a communication book which they will arrange to exchange at the children’s school;
(b) telephone, SMS or other electronic messaging; and
(c) letter.
The father and the maternal parents are at liberty to attend school, sporting and extra-curricular activities to which parents are invited or welcome provided that the day-to-day care of the children during such activities, including their transportation to and from the event, remains the responsibility of the party having the care of the children pursuant to these Orders, unless otherwise agreed between the parties.
Both the father and the maternal parents will, if required, authorize the other party to receive reports, notices and other documents to which a parent might expect access from staff at the children’s school(s) or any of their treating health professionals.
The father is restrained from making critical or derogatory remarks about the mother, the maternal parents or members of the maternal family in the presence or within the hearing of any of the children and he will use his best endeavours to ensure that no other person does so.
The mother and the maternal parents are restrained from making critical or derogatory remarks about the father or members of his family in the presence or within hearing of any of the children and use their best endeavours to ensure that no other person does so.
All parties will ensure that the children are not exposed to any persons affected by alcohol, illegal drugs, non-prescription medication or any form of domestic violence whenever the children are in their care.
All parties are restrained from using physical punishment as a form of discipline in relation to any of the children.
The father and the second respondent will communicate with each other with a view to adopting a common approach to the discipline of the children.
The father will continue to support the children as members of the L People and encourage them to engage in all aspects of their cultural heritage and traditions during the time that the children spend with the maternal family.
The mother and the maternal parents will enrol in, and complete, the “Keeping Kids in Mind” post-separation parenting course conducted by J Care, with the enrolment to occur within three months of the date of these Orders.
Within thirty (30) days of the date of these Orders, all parties will engage with a counsellor or other suitably qualified therapist, as agreed between the parties, and in the absence of agreement, as nominated by the Independent Children’s Lawyer, to obtain counselling with respect to the effect and implementation of these Orders, for such period as is recommended by the treating professional.
Within three months of the date of these Orders, the father and the second respondent are to enrol in and attend a Parenting Orders Program as offered by Relationships Australia so as to assist them in improving their communication skills regarding matters concerning the children.
The father will engage with an Independent Aboriginal Liaison Officer in the G Town area (if available) to provide him with assistance, guidance and education in relation to the children’s Aboriginal culture, kinship and connection to the K Town Community.
The father and the second respondent will accept all advice and recommendations made by all treating medical practitioners and health professionals for the children and in particular for the child E.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thayer & Caville and Ors 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: WOC 602 of 2013
| Mr Thayer |
Applicant
And
| Ms Caville |
First Respondent
And
| Ms B Caville |
Second Respondent
And
| Ms C Caville |
Third Respondent
And
| Independent Children’s Lawyer |
Verekers Lawyers
REASONS FOR JUDGMENT
The proceedings
These proceedings concern parenting orders in relation to the children:
·D born in 2007 (7)
·E born in 2009 (5)
·F born in 2011 (4).
The parties to the proceedings are Mr Thayer (“the father”), Ms Caville (“the mother”) and Ms B Caville and Ms C Caville (“the second and third respondents”). Ms B Caville is a sister of the mother and Ms C Caville is the maternal great-grandmother of the children.
Sadly, it was common ground that the mother suffers from chronic mental health problems which are exacerbated by drug and alcohol use. At the time of the trial in July 2015, the mother was an inpatient at a psychiatric facility. She gave no oral evidence and was not present at any time during the trial.
At the conclusion of the trial, the Independent Children’s Lawyer (“ICL”), the father and the second and third respondents agreed in principle to continue an equal-time regime which had existed since January 2014. On 21 January 2014 the Federal Circuit Court ordered, pending further order that the children live with the father and the second and third respondents in a week-about arrangement. Counsel for the mother indicated that she sought orders to the effect that the children live primarily with the second and third respondents and that the mother “retain parental responsibility”.
With respect to the mother, it seems to me that she was in no realistic position to take issue with the parenting arrangements which were fundamentally agreed between the parties who will provide primary care for the children. Accordingly, limited issues remained for my determination and there was agreement that I provide my reasons in truncated form.
During final submissions, the ICL submitted a Minute of Proposed Orders in the following terms:
Parental responsibility
1.That the Father and Second and Third Respondents (jointly) (referred to as “the maternal parents”) have equal shared parental responsibility for the children, [D], born … 2007, [E], born … 2009 and [F] born … 2011, in relation to the care, welfare and development of a long term nature involving the children, to include, but not limited to issues about:-
1.1The education of the children – both current and future;
1.2The religion of the children;
1.3The health of the children;
1.4Any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with any party.
2.That the maternal parents notify and keep informed the
First Respondent (referred to as “the Mother”) of all long term decisions which affect the care welfare or development of the children.3.That the children be known as:
3.1[D Caville-Thayer]
3.2[E Caville-Thayer]; and
3.3[F Caville-Thayer].
4.That the Father and the Second Respondent approach the Registrar of Births, Deaths and Marriages in the State of New South Wales to have such changes of names recorded on each of the children’s
Birth Certificates, without the need for the Mother’s written and signed consent.5.That the Father and the Second Respondent be at liberty to apply for and obtain Birth Certificates from the Registrar of Births, Deaths and Marriages in New South Wales for each of the children namely [D] born … 2007, [E] born … 2009 and [F] born … 2011 without the need for the Mother’s written and signed consent.
6.That the Father have sole responsibility for making decisions about the children’s day to day care, welfare and development during the times that the children are living with or spending time with him.
7.That the maternal parents have sole responsibility for making decisions about the children’s day to day care, welfare and development during the times that the children are spending time with them or with the Mother.
Live with/Spend time with
8.That the children live with the Father at all times when they are not living with or spending time with the maternal parents.
9.That the children live within the region of [G Town].
10.That, unless otherwise agreed by the Father and the maternal parents, each of the children are to be enrolled and to continue their enrolment at [H Town] Primary School.
11.That until the commencement of the first school term of 2017, the children spend time with their material parents as follows:
11.1In week 1, from the conclusion of school on Wednesday until the commencement of school on Friday;
11.2In week 2, from the conclusion of school on Wednesday until the commencement of school on following Monday; and
11.3At such other or different times as may be agreed between the Father and the maternal parents.
12.That following the commencement of the first school term in 2017, the children spend time with the maternal parents as follows:
12.1From the conclusion of school on Thursday until the commencement of school on Thursday morning in the following week; and
12.2At such other or different times as may be agreed between the Father and the maternal parent.
13.That the children spend time with the Mother as agreed between the Mother and the maternal parents, provided that:
13.1Such time may be unsupervised but only for a period which does not exceed one hour and only if the maternal parents or one of them is satisfied that the Mother appears to be in good mental health, is compliant with any Community Treatment Order and is not affected by either alcohol and/or illegal drugs or non-prescription medication; or
13.2Such time be supervised by either of the maternal parents.
14.That notwithstanding any other Order, the children spend time with the Father on the following occasions of special significance:
14.1From 2.00 pm Christmas Day until 2.00 pm Boxing Day, in even numbered years;
14.2From 2.00 pm Christmas Eve until 2.00 pm Christmas Day, in odd numbered years;
14.3From 2.00 pm Easter Saturday until 2.00 pm Easter Sunday, in odd numbered years;
14.4From 2.00 pm Easter Sunday until 2.00 pm Easter Monday, in even numbered years;
14.5From 5.00 pm on the middle Saturday of the Australian Capital Territory gazetted school holiday periods following Terms 1, 2 and 3 in each year, until the commencement of school on the first day of the new school term;
14.6For one half of the Australian Capital Territory gazetted Christmas school holiday periods in 2015, 2016 and 2017, as follows:
14.6.1The children will spend alternate one week blocks of time with the Father and the maternal parents, commencing the first week with the Father from the conclusion of school on the last day of the school term until the second Saturday of the holiday period,
14.6.2Thereafter with the maternal parents having the following and each alternate week with changeover to occur at 9.00 am each Saturday.
14.7For one half of the Australian Capital Territory gazetted Christmas school holiday periods from the end of 2018, as follows:
14.7.1In years when Christmas Day is in an even-numbered year, from the conclusion of school on the last day of the school term until 5.00 pm on 8 January; and
14.7.2In years when Christmas Day is in an odd-numbered year, from 5.00 pm on 8 January until the commencement of school on the first day of the new school term.
14.8That, if Father’s Day falls during a time when the children are spending time with the maternal parents in accordance with these Orders, then the maternal parents’ time with the children is to be suspended from 5.00 pm on the day prior to
Fathers’ Day until the commencement of school on the Monday immediately following the Father’s Day weekend; and14.9If any of the children’s birthdays fall during a time when the children are spending time with the maternal parents, then the maternal parents’ time with the children is to be suspended for a period of three hours on each of those days as agreed between the parties, and, in the absence of agreement, from 3.00 pm until 6.00 pm.
15.That, notwithstanding any other Orders, the children spend time with the maternal parents on the following occasions of special significance:
15.1.From 2.00 pm Christmas Eve until 2.00 pm Christmas Day, in even numbered years;
15.2.From 2.00 pm Christmas Day until 2.00 pm Boxing Day, in odd numbered years;
15.3.From 2.00 pm Easter Sunday until 2.00 pm Easter Monday, in odd numbered years;
15.4.From 2.00 pm Easter Saturday until 2.00 pm Easter Sunday, in even numbered years;
15.5.From 2.00 pm Easter Sunday until 2.00 pm Easter Monday, in odd numbered years;
15.6.From the conclusion of school on the last day of school in Terms 1, 2 and 3 until 5.00 pm on the middle Saturday of the Australian Capital Territory gazetted school holiday periods following Terms 1, 2 and 3;
15.7.For one half of the Australian Capital Territory gazetted Christmas school holiday periods in 2015, 2016 and 2017, as follows:
15.7.1The children will spend alternate one week blocks of time with the Father and the maternal parents, with the time for the maternal parents commencing at 9.00 am on the second Saturday of the holiday period,
15.7.2Thereafter with the maternal parents having each alternate week with changeovers to occur at 9.00 am each Saturday.
15.8For one half of the Australian Capital Territory gazetted Christmas school holiday periods from the end of 2018, as follows:
15.8.1In years when Christmas Day is in an odd-numbered year, from the conclusion of school on the last day of the school term until 5.00 pm on 8 January; and
15.8.2In years when Christmas Day is in an even-numbered year, from 5.00 pm on 8 January until the commencement of school on the first day of the new school term.
15.9.That if Mothers’ Day falls during a time when the children are living with the Father in accordance with these Orders, then the Father’s time with the children is to be suspended from 5.00 pm the day prior to Mothers’ Day until the commencement of school on the Monday immediately following the Mothers’ Day weekend.
15.10If any of the children’s birthdays fall during a time when the children are spending time with the father, then the father’s time with the children is to be suspended for a period of three hours on each of those days as agreed between the parties, and, in the absence of agreement, from 3.00 pm until 6.00 pm.
15.11During NAIDOC week each year, the children are to spend both weekends at the commencement and conclusion of NAIDOC week with the maternal parents, from the conclusion of school on Thursday until the commencement of school on Monday.
16.That for the purposes of the implementation of these Orders:
16.1When changeover is to occur on a school day, it will occur at the children’s school(s) and/or preschool(s) at the commencement of time with the children; and
16.2When changeover is to occur on a non-school day, then changeover is to occur at the Coles Supermarket at [I Town], unless otherwise agreed between the Father and the maternal parents.
Provision of Information
17.That the Father is to ensure that the maternal parents or either of them are kept informed as soon as reasonably practicable of:
17.1Any serious medical condition or hospitalization of any of the children while his (sic) care;
17.2Any medication(s) that have been prescribed for the children;
17.3.Any specialist medical appointment with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding any of the children;
17.4.Any social, school or religious functions which the children are to attend;
17.5.The residential address of the Father; and
17.6.The telephone number of the Father.
18.That the maternal parents are to ensure that the Father is kept informed as soon as reasonably practicable of:
18.1.Any serious medical condition or hospitalization of any of the children while in their care;
18.2Any medication(s) that have been prescribed for the children;
18.3Any specialist medical appointment with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding any of the children;
18.4.Any social, school or religious functions which the children are to attend;
18.5The residential address of the maternal parents and of the Mother; and
18.6.The telephone number of the maternal parents and of the Mother.
19.That for the purposes of communicating information between the parties, the parties will communicate by:
19.1A communication book which will be carried between households by the children;
19.2Telephone, SMS or other electronic messaging; or
19.3Letter
School involvement & attendance at events & special occasions
20.That the Father and the maternal parents are welcome to attend school, sporting and extra-curricular activities to which parents are invited or welcome although the day to care (sic) of the children during such activities including the children’s transportation to and from the event remains the responsibility of the party having the care of the children under these Orders, unless otherwise agreed between the parties.
21.That both the Father and the maternal parents will, if required, authorize the other party to receive reports, notices and other documents to which a parent might expect access, whether for the school or a medical practitioner attended by any of the children.
Restraints
22.That the Father be restrained from making critical or derogatory remarks about the Mother, the maternal parents or members of the maternal family in the presence or within the hearing of any of the children and the Father use his best endeavours to ensure that no other person make any critical or derogatory remarks about the Mother, the maternal parents or members of the maternal family in the presence or within hearing of any of the children.
23.That the Mother and the maternal parents be restrained from making critical or derogatory remarks about the Father or members of his family in the presence or within hearing of any of the children and use their best endeavours to ensure that no other person make any critical or derogatory remarks about the Father or members of his family in the presence or within hearing of any of the children.
24.That all parties are restrained from consuming alcohol to excess, or consuming illegal drugs or non-prescription medication whenever the children are in their care, and for a period of twenty four (24) hours prior to the children coming into their care.
25.That all parties are to ensure that the children are not exposed to any persons affected by alcohol, illegal drugs, non-prescription medication, or any form of domestic violence, whenever the children are in their care.
26.That all parties are restrained from using physical punishment as a form of discipline on any of the children.
Steps to improve parenting
27.That the Father and the Second Respondent are to communicate with each other with a view to adopting a common approach to the discipline of the children.
28.That the Father continue to support the children as being children of the [L People] and encourage the children to engage in all aspects of their traditional cultural heritage and traditions, during the time that the children spend with the maternal family.
29.That the Mother and the maternal parents enrol in, and complete, the “Keeping Kids in Mind” post-separation parenting course conducted by [J Care], with the enrolment to occur within 3 months of the date of these Orders.
30.That, within 30 days of the date of these Orders, all parties are to engage with a counsellor or other suitably qualified therapist, as agreed between the parties, and in the absence of agreement, as nominated by the Independent Children’s Lawyer, to obtain counselling with respect to the effect and implementation of these Orders, for as long as the treating professional recommends.
31.That within 3 months of the date of these Orders the Father and the Second Respondent are to enrol and attend a Parenting Orders Program as implemented by Relationships Australia to assist them in improving their communication skills with each other regarding matters concerning the children.
32.That the Father engage with an Independent Aboriginal Liaison Officer in the [G Town] area (if available) to provide him assistance, guidance and education in relation to the children’s Aboriginal culture, kinship and connection to the [K Town] Community.
33.That the Father and the Second Respondent accept all advice and recommendations made by all treating medical practitioners and health professionals for the children and in particular for the child [E].
The father took issue with orders 3, 4, 5, 11, 12 and 13 as proposed by the ICL. He sought an order that all three children be known by the surname “Thayer” and was opposed to the use of a hyphenated name. He proposed that the current arrangements continue, so that the children spend alternate weeks in the care of himself and the second and third respondents. The father agreed to the proposal of the ICL in relation to the children’s time with the mother, provided that they see her away from the home of Ms M Caville (“the maternal grandmother”). The father adopted the suggestion of the ICL that the parties use a communication book, which he proposed that they exchange at the children’s school.
The second and third respondents took issue with orders 11, 12 and 13 as proposed by the ICL. They agreed with the father that the current week-about regime should continue in its present form, without the suggested variation until the commencement of the 2017 school year. They sought an order to the effect that the children spend time with the mother as they agreed with her from time to time. They opposed any restrictions on the children’s interaction with the maternal grandmother or Mr W Caville (“the maternal uncle”). They agreed with the proposal that the parties use a communication book, which they would exchange at the children’s school.
The outstanding issues between the ICL, the father and the second and third respondents thus narrowed to the following matters:
·Should there be a different shared-care arrangement between the date of orders and the commencement of the 2017 school year?
·What surname should be adopted by the children?
·In what circumstances and conditions should the children spend time with the mother?
·Should any restrictions be placed on the children’s interaction with the maternal grandmother and maternal uncle?
Background
Ms C Caville was born in 1932 and is currently 83 years of age. She is a proud L woman and a respected Aboriginal elder. She has lived in the K Town community near N Town for 63 years. Her grand-daughter, the second respondent, lives with her. Their home is known within the community to be an alcohol and drug-free environment.
The father was born in 1979 and is presently 36 years old. He lives in rented accommodation at O Town. The mother was born in 1984 and is currently aged 31 years. On occasions the mother lives with Ms M Caville but she also spends time outside the K Town community.
The father and the mother commenced a relationship in October 2006 and separated in June 2012. Their relationship was volatile and coloured by the mother’s severe mood swings. I will not consider the evidence in relation to various alleged incidents between the father and the mother, in view of the narrowness of the outstanding issues.
The mother first experienced mental health problems when she was approximately seventeen years old. She has been diagnosed variously with schizophrenia, bi-polar disorder and borderline personality disorder. In relation to the mental health of the mother the single expert, Dr P, opined as follows:
[Ms Caville] has a long history of psychotic episodes. She has had a number of admissions to hospital with hallucinations and delusions of a bizarre nature. She had delusions that she was getting messages from the television. I note that a number of different diagnostic labels have been used, including schizophrenia, borderline schizophrenia, psychosis and bi-polar affective disorder. It doesn’t really matter exactly which label is used as often people with psychotic illness can present with slightly different symptoms which can attract slightly different labels. However it is clear that she has had a serious psychotic illness which has required hospitalisation. She has been under a mental health order. She does appear to have significant social deterioration.
The features of schizophrenia are that there are acute recurrent episodes of psychosis with hallucinations or delusions, which she has had. There are features of social deterioration and inability to be able to read social cues and understand social nuances. There is thought disorder and reduction in emotional capacity. She has some of these features. I believe that she does have some reduction in her emotional capacity, understanding social nuances. However she does appear to have the ability to appreciate affection. And her thinking when she is well appears to be reasonably logical. However she is quite child-like in her manner, and has partial insight into her illness, but not full insight. In addition it is difficult for me to be clear about the extent of alcohol abuse and how this contributes to destabilising her mental illness.”
The mother and father turned to the second and third respondents after the birth of F in 2011. She was born prematurely with respiratory complications and remained in hospital until April 2011. At that point, she was discharged into the care of the second and third respondents. D and E remained in the care of the father.
Between March 2011 and February 2012, the father, the mother, D and E lived with the maternal grandmother at K Town. In about May 2012, the father, D and E moved to Q Town. The mother lived with them for several weeks, before she left the family unit permanently.
In July 2013 the father moved to R Town, taking all three children. The mother and the second and third respondents did not know of nor consent to this relocation. On 30 August 2013 a recovery order was made at N Town Local Court in respect of F and she was returned to the care of the second and third respondents on 2 September 2013. The father however remained in
R Town with D and E. On 18 December 2013 the Federal Circuit Court ordered that the father return the children to the G Town district by 21 January 2014. Orders were made on 21 January 2014 that the father and the second and third respondents have equal shared parental responsibility and that the children live with them in a week-about arrangement.
On 24 June 2014, trial dates in the Federal Circuit Court at Wollongong were vacated on the application of the second and third respondents. A final hearing in the Federal Circuit Court was again vacated on the application of the second and third respondents on 14 April 2015, when they raised an issue as to the paternity of the children. Parentage testing was carried out and a report dated 17 July 2015 (Exhibit 1) established that all three children are the biological offspring of the father.
It was common ground that E suffers from developmental problems. On 20 June 2013 a paediatrician, Dr S, reported as follows:
[E] is clearly quite a challenging little fellow. He is clearly developmentally abnormal. I think he may have very limited expressive and receptive language.
I think it is possible that he may fit the picture of autism. Further information is required regarding [E]. It would be extremely helpful to have a copy of the Noah’s Ark Assessment and to hear their plans for his future therapy.
Dr S opined further in relation to E:
In my view [E] has global developmental delay associated with a speech abnormality. It is possible he may fit the picture of autism. It is also possible that his current status is part of the foetal alcohol syndrome.”
In a report dated 1 July 2015 Ms Jennifer Butler, a psychologist at K Town Public School, opined as follows in relation to E:
[E] has undergone prior assessment through the [T Region] Diagnostic and Assessment Service and was provided diagnosis of mild intellectual debility and ADHD.
Since commencing kindergarten at the beginning of the year, [E] has had significant difficulty in engaging in the classroom. He has continued to display significant off-task behaviour, high levels of distractibility and behavioural difficulties (including non-compliance, absconding from class, mimicking disruptive behaviours of other students, and occasional aggressive behaviour). [E] has significant difficulty engaging tasks and maintaining attention. He is frequently fidgety and appears to seek a high degree of sensory stimulation and physical movement (often rolling around the classroom). With one-to-one assistance, [E] has success in attempting structured tasks but is often distracted by his specific interests (such as dinosaurs). Despite making classroom adjustments to accommodate [E’s] learning needs and diagnoses, [E] continues to experience significant difficulties with daily classroom life and expectations.”
The evidence and witnesses
The applicant father relied upon his affidavits of 9 April 2015, 29 June 2015 and 20 July 2015. He gave oral evidence in cross-examination by counsel for the ICL, the mother and the second and third respondents.
The respondent mother relied upon her affidavit of 9 April 2015. As noted, she was an inpatient at a psychiatric facility at the time of the trial and gave no oral evidence in the proceedings.
The second and third respondents relied on the following affidavits:
·Ms B Caville sworn on 20 June 2015
·Ms C Caville sworn on 29 June 2015
·Ms U Caville (sister of the mother and the second respondent) sworn on 19 June 2014.
At the insistence of counsel for the second and third respondents, they gave additional evidence-in-chief. These three witnesses all gave further oral evidence in response to questions from counsel for the ICL and the father.
I had the benefit of reports of Dr P, a psychiatrist, and Mr V who is a psychologist. I admitted the report of Dr P over the objection of counsel for the second and third respondents.
Counsel for the second and third respondents wrote in her outline of case:
It would appear that the Single Expert of [Mr V] was originally intended to supplement the report of [Dr P] on indigenous and kinship issues. In particular, Order 14 of the Orders of 24 June 2014 is worded that “No weight be given to the report of Dr P dated 16 June 2014, in so far as it relates to indigenous or kinship matters”.
The areas of divergence between the report of Dr P and the report of Mr V are identified at pages 33 to 36 of the report of Mr V. At paragraph 1 on page 34 [Mr V] comments that:
“The absence of any meaningful consideration of the children’s Aboriginality and the failure to consider the cultural context of the family is a matter that in my opinion undermines the overall coherency and credibility of the [Dr P] report.”
[Dr P’s] assessment was conducted considerably earlier in time than the assessment of [Mr V] and at a time when the children were not spending equal time between the second and third respondent and the father …
I reject the assertion that the report of Dr P was prepared “at a time when the children were not spending equal time between the second and third respondents and the father”. The report was dated 16 June 2014, with Dr P carrying out his interviews on 20 May 2014. The relevant orders were made on 21 January 2014 and Dr P wrote: “Then from February 2014 it was a shared arrangement of a week about”
I reject the submission of counsel for the second and third respondents that “issues arising from the mother’s mental health are of no relevance and are not in contest in the proceedings”. It seemed abundantly obvious to me that the impact of the mother’s mental health problems on her capacity to care for the children, and the implications for their ongoing relationship, were highly relevant considerations.
Mr V is a recognised expert in relation to issues of indigenous culture and kinship. He gave very helpful evidence as to these matters.
Outstanding issues
I will determine the outstanding issues by reference to the objects and principles set out in Part VII and with regard to the considerations contained in section 60CC of the Family Law Act 1975 (Cth). I will now proceed to determine the remaining issues on that basis.
1. Arrangements for the shared care between the date of orders and the first school term in 2017
The father and the second and third respondents agreed that the present arrangements should continue, such that the children spend equal time with them on a week-about basis. The ICL proposed that there be a period of approximately sixteen months during which time spent with the father and the second and third respondents is broken into shorter periods, in a rotating fortnightly cycle.
It may be that the proposal of the ICL is intended to address concerns expressed by Mr V as to the appropriateness of a week-about arrangement for a child of F’s age. He said: “Ten days can be a long time in the life of a four year old. There are pros and cons …” Mr V said also: “I fully appreciate that [there can be difficulties] with week about with a child of [F’s] age. It needs to be treated with considerable caution.”
The three children have now been living in a week-about regime for some nineteen months. Each of their principal carers considered that their best interests will be met by a continuation of this arrangement. Neither the father nor the second and third respondents suggest that these arrangements are ideal for the children. They all agree, however, that they can co-operate within this framework so as to meet the best interests of D, E and F.
I have concerns as to the potential impact upon the children of yet another change in the arrangements for their care. On balance, it seems to me to be preferable that the current regime continues without interruption.
2. The children’s surname
At present, D and E are known as “Thayer” and F uses the surname “Caville”. The ICL and the second and third respondents proposed that all three children now adopt the surname “Caville-Thayer”. The father sought orders which would result in all three children using the surname “Thayer”. It is thus common ground that D and E should no longer have a different surname to that of F.
The father maintained that he and the mother agreed that their children should be known as “Thayer”. He contended that F “would adapt more readily to change than the older two children”.
Ms B Caville explained her reasons for support of the proposal of the ICL in these terms: “I prefer “[Caville-Thayer]” because they are Koori kids and in a Koori community you are known by your name. They will find it very hard without the [Caville] name in the wider community”.
Mr V said: “I can understand that the [Caville-Thayer] surname reinforces their connection with their culture.” Dr P opined: “I agree that there is some cultural relevance in having “[Caville]” in the children’s surname. It is important for them all to have the same surname and I see some value in [Caville] in the surname.”
I understand and respect the father’s desire that all three children should bear his name. The fact that D and E have the surname “Thayer” indicates that he and the mother did in fact reach that agreement.
On the other hand, the children have a strong connection with their Aboriginal culture. All parties wish to maintain and nurture this aspect of their lives. I am persuaded that their connection with their Aboriginal heritage will be enhanced if “Caville” appears in their surname. I will make orders as proposed by the ICL, which will cause the children to be known forthwith as “Caville-Thayer”.
3 Conditions upon which the children should spend time with the mother and proposed restrictions on interaction with the maternal grandmother and maternal uncle
Mr V gave the following evidence in relation to the children’s time with the mother:
I understand that there are times when the mother functions quite well and [Ms B Caville] permits limited unsupervised time. I am aware of the diagnosis of severe schizophrenia, threats to kill, and rapid mood changes in the mother. I am not talking about hours away from the community.
Mr V said further:
[Ms B Caville] and [Ms C Caville] are protective of the children and monitor closely the mother with the children. I fully accept that [Ms B] and [Ms C] provide a highly protective umbrella for the children and that they would do their best to mitigate any risk to the children. I am satisfied that they can deal with alcohol abuse by [Ms M], [Ms Caville] and [Mr W].
Dr P offered these opinions as to the children’s time with the mother:
If [Ms Caville] is non-compliant, there is a degree of individual difference in how long it would take to relapse. Normally it is weeks and months. If she misses one or two doses, she is not likely to relapse. Normally it is progressive unless she uses a substance like ice or marijuana. This is something that would be detected by [Ms B] – changes in behaviour and unusual ideas.
Dr P said also:
I would prefer to call the children’s time with [Ms Caville] accompanied rather than supervised. The idea is to ensure that she is in a mentally stable state. Either [Ms B] or [Ms C] would be appropriate. If [Ms B] or [Ms C] determine that she is in a stable mental state and not affected by drugs or alcohol, it may be appropriate for the children to be with her unsupervised for two to three hours. Longer periods may stress her.
I accept the opinions of Mr V and Dr P to the effect that both the second and third respondents are highly protective of the children. I accept that the second respondent in particular is finely attuned to changes in the behaviour of the mother, which indicate impending mental health difficulties.
I am of the view that the second and third respondents would take all necessary steps to ensure the physical and psychological safety of the children, in terms of exposure to the mother, the maternal grandmother and maternal uncle. I will not make order 13 as proposed by the ICL. I will order that all of the children’s time with the mother is monitored by the second and third respondents.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on
17 September 2015.
Associate:
Date: 17 September 2015
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Family Law
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