Ustinov and Peters

[2012] FamCA 1129

FAMILY COURT OF AUSTRALIA

USTINOV & PETERS [2012] FamCA 1129

FAMILY LAW – CHILDREN – Application by father to take child overseas over holiday period – Application by mother for sole parental responsibility and father’s time to be suspended pending further order – Two Contravention Applications withdrawn by father and dismissed – Parties evidence both untested – Tested evidence of treating psychiatrist of child as to child’s mental health and views in relation to spending time with the father – Suspension of father’s time with child continued until adjourned date and father thereby not permitted to take child overseas

Family Law Act 1975 (Cth)

APPLICANT: Mr Ustinov

RESPONDENT: Ms Peters

FILE NUMBER: PAC 3670 of 2009

DATE DELIVERED: 12 December 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 12 December 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

SOLICITOR FOR THE RESPONDENT:

Ms Campbell

Legal Solutions

Orders

1. That I note that the Applicant in two applications for Contravention does not wish to proceed with those applications and I thereby dismiss both Contravention Applications filed 5 November 2012 and 8 November 2012 respectively, seeking that the Respondent be dealt with for contravention.

2. That I note Dr G’s costs application for costs at an assessment of $1,200.

3. That until 4.15 pm on 7 February 2013 I suspend any parenting Orders providing for the father to spend time with the subject child B (the child) born … July 1999.

4. That I stand over this matter over to Thursday 7 February 2013 at 4.15 pm for the purpose of making further directions for the conduct of the matter.

a.That on that occasion I will endeavour if it become necessary to re-examine in brief form the question of whether or not the father’s suspension of time continues, and make detailed orders for this matter to be ready for a further hearing including the appointment or reappointment of an expert to give assistance to the Court.

1. That the said child born ... July 1999 be separately represented. I request that the Legal Aid Commission of NSW arrange such appointment. If possible, I request that the Commission consider the reappointment of the previous Independent Children’s Lawyer in this matter, Ms Mahony.

2. That I direct that both parties within seven (7) days of this date make available to the officer in charge of such appointments at the Parramatta Office of the Legal Aid Commission of NSW all material relied upon in this matter to date.

3. That I grant liberty to either party, or the Independent Children’s Lawyer when appointed, to relist the matter upon giving seventy-two (72) hours notice.

4. That I note that I will be absent from the Registry from close of business Thursday 13 December 2012 until Tuesday 29 January 2013. If the matter requires attention during that time it may be taken before any other judicial officer who is prepared to accept it.

5. That I reserve the costs of Dr G for attending for cross-examination today.

6. That I reserve the costs of the mother in respect of the contravention applications withdrawn by the father today.

7. That the USB devices of the father shall be placed in an envelope with the exhibits held in this matter in the Exhibits section of the Parramatta Registry, but they have not yet become exhibits in these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Ustinov 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 PARRAMATTA

FILE NUMBER: PAC 3670 of 2009

Mr Ustinov

Applicant Father

And

Ms Peters

Respondent Mother

REASONS FOR JUDGMENT

Introduction

1. This is a matter with a long history in this Court.  On 27 July 2011, I made extensive Orders concerning the time the father was to spend with the child, B, who was born in July 1999.  Apart from providing for such time, at Order 21 of those Orders I provided that if the father, at any time, sought an order that the children be taken out of the Commonwealth of Australia, he was to file an application, and I directed that that application be made returnable before me in the first instance.  Indeed, on 23 October 2012, the father did bring an application, and the orders he sought, both on a final and an interim basis, were orders that the child travel outside Australia, that is to Europe, and that the mother sign a passport application.

2. The mother has filed a Response to that application.  In addition, the mother filed in the Town J Local Court on 5 November 2012 an application that she be granted sole parental responsibility, that the child live with her and that the child spend time with the father as agreed between the child and the father.  That matter was transferred by the learned Federal Magistrate to this Court and comes before me today. 

3. Indeed, the matter has had several mentions before me in respect of, particularly, the father’s application.  On 22 November 2012, it will be remembered, that until 4.00 pm this day, I suspended all Orders for the father to spend time with the subject child.  The intention of making the Order in that form was that that issue would have to be re-assessed today, and that is precisely what I am endeavouring to do.

4. To my mind, it seems that the two issues to be dealt with today can then be clearly identified as follows:-

   (1)Whether or not the father should spend further time with the child until the matter is next before the Court, and I have indicated the date on which that will occur is 7 February 2013; and

   (2)Whether or not the father should be permitted to take the child out of the Commonwealth of Australia over the upcoming Christmas holidays. 

   It would seem to me that, if I were to determine that the father should not spend time with the child in the intervening period, the second issue, that is, of taking the child out of the Commonwealth of Australia, would become moot.  I am concerned at the proximity of the dates of these applications, although it is said that, on the state of the material as it presently stands, the mother had no indication of the father’s application when she made her application for suspension of his time with the child.

5. This is, from my own knowledge and involvement, a matter that has been fraught with difficulty.  The matter was prolonged when it was last before me because of the father’s ill health and the father’s intransigence in providing material that I considered was absolutely necessary before I could proceed and dispose of the matter.  I say that because it is clear that a high feeling of animosity remains, and I am satisfied that both parties still carry intense dislike for each other and both parties are not aware of the damage to its full extent that their actions are having upon this child.

6. The mother’s application for suspension is very largely, if not, in effect, solely, based on two reports by a Dr G, a practising psychiatrist.  There is annexed to the mother’s affidavit a report of Dr G dated 18 September 2012.  There is before me today a further letter from Dr G dated 13 November, which will become Court’s Exhibit 1.  Dr G was called today for cross-examination.  That was at the insistence of the father, and it was on 22 November 2012, because of his insistence, that I ordered Dr G be here today.

Material parties sought to rely upon

1. The affidavit material that I have read in support of the father’s application, which I will deal with as the first in time, was:-

   ·    his affidavit sworn 22 October 2012 and filed 23 October 2012;

   ·    his affidavit sworn 7 November 2012 and e-filed 7 November 2012; and

   ·    his further affidavit sworn 7 November 2012 and filed 8 November 2012. 

   Those appear to be the swearing dates of those respective affidavits, given that the dates do not appear on the front page of each of those documents.

2. The mother’s material was:-

   ·her Application for Final Orders filed in the Town J Federal Magistrates Court on 5 November 2012;

   ·her affidavit, supporting the above application, sworn 1 November 2012 and filed 5 November 2012; and

   ·a further affidavit of hers sworn and filed on 21 November 2012.

3. I have read that material and have heard lengthy submissions from counsel on behalf of the mother and from the father in person.

The evidence before me

1. Part of the evidence before me, being the evidence of the father and mother, remains untested.  Accordingly, it is impossible for me to make a determination as to who is to be believed and who is not to be believed in respect of matters of conflict between them at this time. 

2. What I do have, however, is the evidence of Dr G, tested by the father in cross-examination.  Dr G is not a reporter; she is a therapist.  She has spoken with the child, partly in the presence of his mother and partly not in the presence of his mother, and she has formed views as to his mental health and the possible, or indeed probable, causes of his mental health situation.

3. It goes without saying that the father disagrees to a very marked extent with Dr G’s conclusions.  As I understand it, however, and to his credit, the father concedes that all his inquiries indicate that Dr G is a good psychiatrist and is to be believed generally.  However, he says that her evidence is tainted because she has heard only one side of the picture, and therefore I should proceed with caution.  To my mind, there is some difficulty in promoting that argument because, as I have pointed out to the father, Dr G is not a reporter.  She is a therapist giving me a report in respect of a patient who has been brought to her for examination and therapeutic care.

4. The father indicated that he believes that the treatment Dr G has prescribed is not proper treatment.  In that, as I understand it, he relies on information received from a general practitioner. 

5. In cross-examination, Dr G indicated that the child was distressed, he was anxious, he was exhausted, he had impaired concentration and was nihilistic, which she defined to mean that he had no sense of future and no expectation for the future. 

6. When she saw the child on 13 November 2012, she said the child appeared to be better.  She agreed there were factors that might otherwise be affecting the child.  She said that the child reported to her and appeared to be happy and relieved that he did not have to go to see his father.  He had mentioned to her on that day, 13 November 2012, a potential trip to Europe, which he said made him feel sick in the stomach and anxious.  She again said that by 13 November 2012, the child was much improved, and when asked if the child could travel overseas with his father, she said that it was not in the child’s best interests to do so.

7. She was then cross-examined by the father, if I might say so, with some skill and to some effect when he accepted assistance offered to him.  Dr G agreed that the mother was present for part of the interview but not the whole of it.  She said there was a mention of the child’s place in his family and school context.  She said that the child would have been dealing with conflict virtually all of his life.  She spoke of severe insomnia.  She said that condition was not to be found in most 13 year olds.  Despite careful cross-examination by the father, she did not agree that children generally are hard to find sleep of an evening.  What she did say was that teenagers choose their own bedtime, and this can be a cause of struggle with parents. 

8. She said that insomnia did not mean that the child was totally unable to sleep.  She described initial and middle insomnia, and she spoke of early-morning difficulties.  She said the child had to struggle to sleep in his own room because of fears that were expressed.  She said the child had difficulties of depression, anxiety and poor sleep.  When asked of relevant stressors, the child spoke of being abducted, but Dr G conceded “abduction” was the mother’s word.

9. She knew that the child had been seeing Dr E, a psychologist.  She was asked why the child was not referred back to a Ms B, who the father insisted was a psychiatrist.  It was Dr G’s evidence, which I accept, that Ms B is a paediatrician, rather than a psychiatrist. 

10. Dr G said she had made two disclosures to the Department of Family and Community Services, as required of her as a mandatory reporter.  She notified in respect of allegations the child made of travelling in a car while the father, he (the child) believed, was intoxicated.

11. Asked whether it would affect her report if she was presented or provided with contradictory evidence, she said it would not affect her observation of the patient’s state. 

12. She spoke of major disorders being of three categories.  She said that she had taken a history and observed the child’s signs and indicators in coming to her conclusion.  She took into account the duration of distress, the lack of sleep and the child’s social withdrawal.  She said what she had observed was not related to a medical causation or any form of substance abuse. 

13. She said the child has some element of melancholia.  Asked where the stressors were coming from, she was able to say that the child’s report would seem to indicate that it had to do with spending time with the father.  She said she did not want to prescribe medication.  She said that medication may be misused, and she said that what she had done and what she had prescribed was a recognised treatment.

14. The father, during the course of cross-examining Dr G, was given leave to show pictures of his son both in still and movie form, and pictures of what he said was the time that the family spent in Europe in 2000.  At that time, there were difficulties with the children being returned to Australia.  I choose these words as carefully as I can and note that the intervention of the European Courts, pursuant to the Hague Convention, was at some stage required. 

15. Dr G said if the child was forced to go to Europe with his father it would be detrimental for him.  She said in answer to my questions that the father’s behaviour as she observed it in Court today indicated a lack of insight and a lack of impulse control. 

16. That is the evidence of the Dr G which I have endeavoured to summarise and which, to my mind, is the cornerstone of this present case.

17. As I have said, there has been no capacity to test the evidence of the parties.  The father, in his submissions, has made it clear to me that that which Dr G has been told is untrue.  He has particularly been anxious to deal with the European episode and an episode of an allegation of mistreatment of a horse.  Again, I stress I have not had any capacity to test the evidence before me in that regard one way or the other. 

18. What I have is the evidence of a practising psychiatrist who, the father himself concedes, on inquiries he has made, is well-regarded and a capable practitioner.  In this case, a capable practitioner acting in a therapeutic role in respect of a patient.

The law to be applied & Discussion

1. This is a matter that causes me enormous concern.  It is a matter that, on the face of it, is never going to end until the subject child, like his older brother, attains the age of 18 years.  However, the application is before me and I am required to deal with it today on an interim basis. 

2. I deal first with the issue of whether time with the father ought to continue to be suspended.  These are parenting proceedings.  I must have regard to the relevant sections of the Family Law Act 1975 (Cth) as they apply. The first of those sections is section 60CC(2), which tells me that I must have regard to the relationship of the child with both parents - described in the section as a meaningful relationship – balanced against the need to protect the child from physical or psychological harm.

3. I then turn to deal with the additional considerations set out under section 60CC(3).  On the evidence available to me of Dr G, and not shaken by cross-examination by the father, the child appears to have expressed a view that he does not wish to spend time with his father, and he certainly does not wish to travel overseas with him (subparagraph (a)).  The factors underlying those views, of course, are put to me by the father as something that has been implanted in the child’s mind by the mother or others, and the child therefore is acting on a mistaken belief and making statements which are false.

4. As to the nature of the relationship of the child with each of the parents (subparagraph (b)), the child has lived effectively all his life with his mother, save for a period of time in Europe with his father in 2000.  I am satisfied that his relationship with the mother is close.  In his comments to Dr G, it would seem that he feels some sense of responsibility for his mother, which causes me some concern. 

5. His relationship with his father, based on Dr G’s report, is to me a matter of significant concern.  The child, notwithstanding that which the father seeks to put before me, does not it would seem, on what I have read and notwithstanding that which I have seen by means of the video clips, very concerned about the time he has to spend with the father.  I am not sure that the relationship between father and son is supportive and I am not satisfied on the material presently before me it is anywhere near as close as the father wishes to impress upon me.

6. The next consideration is the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent (subparagraph (c)).  I have made comment on this matter in previous reasons for Judgment, which I seek to endorse again in these reasons for Judgment.

7. The likely effect of any change (subparagraph (d)) in the present interim situation is that, if I accede to the father’s request, I will restore in whole or in part previous Orders made for him to spend time with the child.  I am satisfied on the material before me that that would not be best for the child. 

8. I am satisfied that the mother has the capacity to care for the child (subparagraph (f)).  I am satisfied that the father, so far as physical elements are concerned, has a capacity, but I am not satisfied that the father has the capacity to understand and meet the child’s intellectual and emotional needs.

9. The attitude to the child and the responsibilities of parenthood (subparagraph (i)) is, to my mind, also of significance.  It seems to me that the parties are both, to some extent, allowing this child to be placed in the middle of an ongoing dispute between themselves.  To my mind, that is not necessarily an attitude that does either of them any credit.  The evidence that I have before me from Dr G was tested in cross-examination.  I find that Dr G gave her evidence and stood cross-examination such that the reports that she had prepared were in no way diminished.  I found her evidence to be that of an expert, given thoughtfully and carefully in response to questions, and I am left, on the basis of that evidence, with the unshakeable conclusion that the child’s time with the father must be suspended at this point in time.

10. Having made that decision, it is unnecessary for me to deal with the question of whether or not the father might be permitted to travel overseas with the child in the period of time in which his time with the child has been suspended.

11. I will, again, put a sunset clause on that suspension.  As I have indicated, the matter will go over to 7 February 2013.  I therefore suspend the father’s time with the child pending further order to 4.15 pm on that day.

12. I then propose to adjourn this matter to the aforementioned date and make an order for the appointment or reappointment of an Independent Children’s Lawyer.  On that next occasion, I will endeavour, if it becomes necessary, to re-examine in brief form the question of whether or not the suspension of the father’s time continues, and I will endeavour to make detailed procedural orders for this matter to be prepared for yet another hearing, including the appointment or reappointment of an expert to assist the Court.

1. The orders that I then make are set out at the forefront of these reasons for Judgment.

2. I note that I will be absent from the Registry from close of business tomorrow until Tuesday 29 January 2013.  If the matter requires attention during that time, it may be taken before any other Judicial Officer who is prepared to hear it.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 12 December 2012.

Legal Associate:       

Date:    14 February 2013