THEODORE & THEODORE
[2018] FamCA 188
•26 March 2018
FAMILY COURT OF AUSTRALIA
| THEODORE & THEODORE | [2018] FamCA 188 |
| FAMILY LAW – CHILDREN – Where further application for more expansive interim parenting orders by father as to his time with the children – Where previous judgment only some months before – Where no change of circumstances – Where objective evidence now available as to children’s views – Where father remains on regime of mental health and pain relieving medication – Where final trial expected within a short period of time – Where father’s further application dismissed. |
| Family Law Act 1975 (Cth) |
| Marsden v Winch (2009) 42 Fam LR 1 SPS and PLS (2008) FLC 93-363 Theodore & Theodore [2017] FamCA 588 |
| APPLICANT: | Mr Theodore |
| RESPONDENT: | Ms Theodore |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Rutkowska |
| FILE NUMBER: | PAC | 5789 | of | 2014 |
| DATE DELIVERED: | 26 March 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 19 February 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Batey |
| SOLICITOR FOR THE APPLICANT: | Rowlandson & Co Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms De Vere |
| SOLICITOR FOR THE RESPONDENT: | Withstand Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Rutkowska of Ark Law Lawyers |
Orders
That the father’s Application in a Case filed 23 November 2017 as amended 16 February 2018 be dismissed.
That any application for costs be made by written submissions filed and served within 14 days from this date with any submissions in response to be filed and served within a further 14 days and that thereafter judgment as to costs be reserved to chambers.
By Consent And Pending Further Order, It Is Ordered That
The mother be and is hereby restrained from bringing the children or either of them into the presence of or leaving the children or either of them in the care of Mr O.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Theodore & Theodore has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5789 of 2014
| Mr Theodore |
Applicant
And
| Ms Theodore |
Respondent
REASONS FOR JUDGMENT
On 11 August 2017 reasons for judgement were delivered and orders made in respect to interim parenting proceedings as between the applicant father and respondent mother: Theodore & Theodore [2017] FamCA 588.
These Reasons assume familiarity with those Reasons for judgement.
Orders were made on 11 August 2017 as follows:
(1)That all previous parenting orders are suspended.
(2)That the mother have sole parental responsibility for the children B born … 2009 and D born … 2010.
(3)That the children live with the mother.
(4)That the children spend time with the father as agreed between the father and mother in writing such writing to include SMS or email communication and in default of agreement:
a)the children spend time with the father each Saturday for a period of not less than two hours between the hours of 10.00 am and 4.00 pm;
b)that such time to be supervised by [W Group] or [Z Group] or otherwise supervised by the paternal grandfather or a person or entity agreed to in writing by the mother and father such writing to include SMS and email communication.
(5)That, otherwise, the father be restrained from approaching or, otherwise, contacting the children unless agreed to by the mother and father such writing to include SMS and email communication.
(6)That the mother and father be restrained from administering physical chastisement or discipline to the children.
The orders were made as discussed in the previous Reasons for judgment against a background of the father’s history of mental health issues and aberrant conduct.
Subsequent to delivery of judgment on 11 August 2017, the father filed a further Application in a Case on 23 November 2017 seeking more expansive orders in relation to his time with the children. The orders sought by him in his Amended Application in a Case filed 16 February 2018 in summary provided:
a)that previous interim parenting orders made 11 August 2017 be discharged;
b)that the children live with the mother;
c)that the children spend time with the father each weekend from 10.00 am Saturday to 5.00 pm Sunday, for three consecutive nights during the term 1, term 2 and term 3 school holiday periods, for three four night blocks during the term 4 school holidays in 2018 and for defined time with the children on their birthdays and, otherwise, further time as agreed between the parties in writing;
d)that the children spend time with the father for defined time over the Christmas festive period and on the Father’s Day weekend;
e)that for the purposes of the children’s time with the father, the father or his nominee collect the children from school or from the mother’s residence at the commencement of such time and the father deliver the children to their school or the mother’s residence at the conclusion of such time;
f)that the mother be restrained from bringing the children or either of them into the presence of or leaving the children or either of them in the care of Mr O at any time (the mother consented to this order being made on a without admissions basis);
g)that the father and mother do all acts and things necessary to ensure that the children receive treatment/counselling through the P Clinic;
h)that the father and mother have prescribed telephone contact with the children at times when the children are with the other parent;
i)that the mother and father be restrained from mutual denigration or from permitting any other person to do so in the presence or hearing of the children;
j)that the mother and father keep the other advised at all times of their residential address, residential telephone number and any emergency contact number;
k)that the mother and father ensure that the other is promptly advised of any medical emergency or significant illness suffered by the children and is properly advised of any medical appointments for the children such as to facilitate the other party being in attendance;
l)that the mother and father do all things and sign all documents necessary to authorise and direct any school attended by the children to provide information to the other parent in relation to the children;
m)that neither party be permitted to change the children’s place of residence without giving the other party not less than 21 days written notice of such proposal; and
n)that the mother and father be restrained from relocating the children’s residence outside the state of New South Wales without the prior written consent of the other party.
On 17 January 2018 the mother filed a Response to the father’s Application in a Case seeking that the father’s Application in a Case be dismissed.
Context
Subsequent to interim orders made in August 2017, the parties and the Independent Children’s Lawyer (“ICL”) agreed on the appointment of Dr Q, family and clinical psychiatrist, for the purposes of preparing a single expert report to assist the Court in determination of this matter.
An order appointing Dr Q as the Single Expert was made by consent on 12 December 2017. The parties have appointments to see Dr Q for the purposes of preparation of the single expert report in March 2018 and it is anticipated that the single expert report will be available for consideration by the parties in May 2018. It is also proposed that upon release of the single expert’s report the proceedings will be promptly relisted for further judicial case management with a view to trial directions being made to facilitate the proceedings being listed for trial in September/October 2018.
It is, otherwise, common ground between the parties that the father’s time with the children has been supervised either by the W Group or the paternal grandfather in accordance with the orders.
It is also common ground that notwithstanding orders made for the father to spend time with the children each week he absented himself on holidays overseas for three weeks during January 2018 during which time the children had no face-to-face contact with him. For a father who professes a desire to ensure that his relationship with the children is rehabilitated his willingness to absent himself from Australia for most of the children’s 2018 Christmas school holidays is perplexing.
The father’s case
The father relies upon the following documents:
a)his affidavit filed 23 November 2017;
b)his further affidavit filed 16 February 2018;
c)the affidavit of Mr R Theodore, the paternal grandfather, filed 19 December 2017;
d)the affidavit of Ms S, the father’s de facto partner, filed 18 December 2017;
e)the affidavit of Dr L, the father’s treating psychiatrist, filed 18 December 2017; and
f)the affidavits of Ms T, the father’s treating psychologist, filed 21 December 2017 and 9 February 2018.
The father’s primary affidavit of November 2017 is in some respects an ongoing reflection of the conflict between the parties and the father’s willingness to disparage and criticise the mother, this notwithstanding that he seeks that the children continue to live primarily with her.
There is no issue that the children have enjoyed their time with the father and that his time has by agreement been extended to be from 10.00 am to 4.00 pm each Saturday and otherwise by agreement. The children have also had significant interaction with the father’s extended family during the days that they have spent with him.
Regrettably, the father chose to absent himself from Australia from 24 December 2017 until 12 January 2018 notwithstanding orders that the children spend time with him each Saturday.
The father, otherwise, says that in September 2017 he completed a parenting course and in October and November 2017 attended the U Group parenting course at Suburb V.
He says that he has continued to attend upon his treating psychologist and psychiatrist. They are both on affidavit in the present application.
The father seeks to be able to spend overnight time with the children unsupervised or in the alternative that his time be supervised by his de facto partner, his sister or the paternal grandfather.
He, otherwise, raises assertions as to the children’s expressed wishes to spend more time with him. A fuller investigation of the children’s wishes and the weight to be attached to those wishes will be the subject of the report from the single expert but is considered below in the context of the Child Responsive Program Memorandum.
The father’s de facto partner resides with the father in premises at Suburb F. She has one child of a previous relationship, K born in 2003. She has sole parental responsibility for K. K is presently residing in Europe and is expected to return to Australia late 2018.
The father’s partner has had contact with the subject children since she commenced her relationship with the father in November 2016.
The father’s mental health
A consideration of the previous Reasons for judgment clearly reveal a concern as to the father’s mental health circumstances.
Dr L: On 17 November 2017 the father’s solicitors wrote to the father’s treating psychiatrist, Dr L, seeking a medico-legal report for the purposes of these proceedings. Dr L was provided with significant background in relation to the proceedings, although it appears not a copy of the Court’s earlier Reasons for judgment.
Dr L reports that she has been treating the father since February 2015 in relation to his Bipolar Affective Disorder (BPAD) and Adult Attention Deficit Hyperactivity Disorder (adult ADHD). The father had previously been treated by Dr M, psychiatrist.
Dr L reports (17 December 2017) that since she has been treating the father she has tried various treatments to address his mood. She says he settled well on a range of mood stabiliser, antidepressant, anti-anxiety agent and stimulant medications including lithium (that prevents the father from cycling into alternating manic and depressive episodes) and dexamphetamine (a stimulant treatment for the father’s adult ADHD).
She opines that the father’s current mental health is stable with his pain resulting from a trampolining accident in January 2014 controlled by Oxycodone medication.
The father reported to Dr L that “his business is suffering as he is not able to recruit new business as he is too distracted and consumed by his family court matter”. It is reported that the father attended on Dr L from July to October inclusive on a monthly basis and then again in December 2017
Dr L further reports that the father has been having weekly therapy with his psychologist in regards to assessment and treatment for anger management.
The father, Dr L reports, has attended punctually for appointments over the six months prior to her December report and he has remained compliant with all medications and obtained all requested investigations. She reports that whilst the father may have been abusing pain medication and alcohol prior to his admission to E Hospital in 2014 together with a history of previous cocaine use, there is no evidence of ongoing abuse of any of these substances since his discharge from hospital.
Dr L opines “I consider him to be care (sic) for his children on an unsupervised basis and he does not pose any risk to the children”. Yet in concluding her report she says:
…further and in my experience an individual’s BPAD becomes unstable, especially if combined by substance use and if that occurs an individual can present with aggression, extreme irritability and suicidality… In my opinion there is no cause for ongoing risk concerns for the children’s emotional and physical well-being, as long as (the father) continues with his current medication regime, regular psychiatric review, and abstinence from substances.
Dr T, Psychologist: on 17 November 2017 the father’s solicitors wrote to the father’s treating psychologist seeking a medico-legal report. The psychologist was provided with significant background information although not a copy of this Court’s previous Reasons for judgment.
Dr T provided a report dated 19 December 2017. She commenced seeing the father only on 1 September 2017 for anger management counselling. As at the date of her report the father had attended for 10 sessions. Dr T reports that the father reported a history of emotional difficulties but has never presented as raging or aggressive in consultations. Surprisingly, notwithstanding the overwhelming objective evidence to the contrary, it appears that he asserted to the psychologist that his admission to E Hospital was related to childhood sexual abuse.
Dr T concludes that on her observations the father does not have current issues with managing anger, raging or aggression but presents with high levels of stress consistent with a diagnosis of Adjustment Disorder with Anxiety. She opines that in her view the father does not pose any risk to his children and she has no concerns about him spending unsupervised overnight visits with them.
The mother’s case
The mother relied upon her affidavit filed 13 February 2018. Much of the evidence repeats the matters that were the subject of evidence before the Court at the earlier interim hearing.
The mother in her affidavit takes issue with the father in terms of his disparaging and critical remarks of her and his assertions as to the wishes of the children. These are issues that will appropriately be the subject of factual determination at final trial.
The Children’s and Parents Issues Assessment
Subsequent to the interim orders made in August 2017, the parties and the children attended for interviews with a family consultant for the purpose of the Child Responsive Program.
As part of this Court’s Less Adversarial Trial process the family consultant’s memorandum was released to the parties’ legal representatives on 3 October 2017.
The child, D, presented to the family consultant as a softly spoken, reserved boy who spoke positively about school and his peer relationships. The child reported that the father was nice “because he does not smack [me] any more”. He added that the father had chased him and yelled and he found this scary. However, he thought that the father was “a good dad”.
The child reported to the family consultant that he wanted to spend one day per week with the father but did not want to sleep over. He was clearly concerned about getting into trouble from the father for talking about the smacking. The child otherwise reported that the father had described the mother as a “drunk” with the child reporting that the paternal grandmother had spoken negatively about the mother and this had made him feel sad.
The child D reported that he did not really remember his parents living together but did remember his mother bleeding when the father broke her telephone. He said that the father was “scary”.
The child B presented to the family consultant as an assertive, confident girl who at times spoke as a child older than her age. The child spoke positively of her mother.
The child was more circumspect about her father, being critical of him for smacking the child, D, and for his negativity in relation to the mother in calling her a liar. The child reported that the father “thought he was the boss” and told them (the children) to tell the Court that he was “the best in the world”.
B reported that she did not wish to spend any more time with the father than she was currently spending. She had a clear recollection of family violence and her father being taken away by the police. She reported that the father spoke negatively about her mother using “rude words”.
Concerningly, the child was worried about the father’s reaction if she said that she did not want to talk to him or see him.
The father acknowledged that he had struck the children with a wooden spoon. The father conceded to the family consultant that he had been at E Hospital for mental health issues of which anger management was a part. The father denied that he had any current substance abuse problems.
The mother reported to the family consultant that there was violence in her relationship with the father and that there had been three AVO’s made against the father with the current order for her protection in place until mid-2018.
Both parties reported to the family consultant that there was no effective co-parenting relationship.
Notwithstanding the views of the children as reported by the family consultant, the ICL provided a draft minute of order that would have implemented overnight time for the children with the father, albeit in a supervised circumstance.
Discussion
The father’s further interim application so soon after the earlier determination raises clear issues as to whether there has been any significant change in the children’s circumstances such as to warrant a further consideration of their parenting arrangements particularly as to their time with the father.
In the earlier Reasons for judgment consideration was given as to the applicable law relating to interim determinations as to parenting and the “statutory pathway” of considerations necessarily to be taken into account. Notwithstanding the father’s further application, nothing has changed
The current evidence of the father is reflective of the children’s circumstances as provided for in the interim orders working well in terms of their time with him, albeit supervised time.
Otherwise, he continues to engage as before with his mental health professionals, his psychiatrist and psychologist and remains on a cocktail of drugs related to his mental health issues and pain relief for a previous injury.
Notwithstanding the views of his mental health professionals as to the father’s suitability to have unsupervised and/or overnight time with the children, those professionals have had no engagement with the children in any therapeutic sense. As such, their views are of little significance.
Otherwise, in the context of the current application, the Court has before it the Child Responsive Program Memorandum dated 26 September 2017 in addition to the evidence before the Court at the initial interim hearing. The memorandum provides an objective reflection as to the concerns and wishes of both children as to their relationship and time with the father. Those concerns and wishes are appropriately addressed in the context of the present interim orders. In so far as the children are concerned, it appears that nothing has changed or should be changed.
In Marsden v Winch (2009) 42 Fam LR 1 the Full Court, after discussion of the earlier authorities and, in particular, adopting statements made by Warnick J in SPS and PLS (2008) FLC 93-363 (“SPS”), said:
48. In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
49.However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
50. Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
Whilst the statement of the Full Court is more referable to a primary threshold issue being the recommencement of earlier completed parenting proceedings the statement is also apposite to the present circumstances where there is an application to reconsider an earlier interim parenting determination made only a few months before.
As discussed above, the circumstances are not indicative of a need to revisit the issues more fully than as set out in the earlier Reasons for judgment. Indeed, the additional objective consideration of the concerns and wishes of the children only lend strength to the appropriateness of the earlier interim orders made.
In circumstances where the final hearing of parenting proceedings will be within about six months hence it is in the best interests of the children for the reasons given above, that the husband’s further application be dismissed.
Orders will be made accordingly.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 26 March 2018.
Associate:
Date: 26 March 2018
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