Verrell and Teague

[2018] FCCA 1861

FEDERAL CIRCUIT COURT OF AUSTRALIA

VERRELL & TEAGUE [2018] FCCA 1861

Catchwords:
FAMILY LAW – Final parenting orders made in 2017 – ongoing issues – mother withholding child – mother refuses to comply with order – recovery order issued.

Legislation:

Family Law Act 1975, ss.11F, 67U, 91B

Applicant: MR VERRELL

Respondent: MS TEAGUE

File Number: MLC 527 of 2016

Judgment of: Judge Harland

Hearing date: 5 July 2018

Date of Last Submission: 5 July 2018

Delivered at: Melbourne

Delivered on: 5 July 2018

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the Respondent:	In person
Solicitors for the Independent Children's Lawyer:	Ms Ebejer of Ebejer & Associates Lawyers

ORDERS

1. The proceeding be adjourned for Interim Defended Hearing on 10 August 2018 on 9:30am.

2. All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at

3. The mother file and serve a response and affidavit in support prior to the next occasion.

4. Pursuant to Section 67U of the Family Law Act 1975 a Recovery Order issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force to:

   a)find and recover the child [X] born 2009 and to deliver the child to the father, MR VERRELL at Property A VIC in the State of Victoria, or such other place as the father and the person effecting such recovery deems to be appropriate;

   b)to stop and search any, vehicle, vessel or aircraft; and

   c)to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found.

   THE COURT REQUESTS THAT:

5. Pursuant to section 91B of the Family Law Act 1975, the Department of Human Services Victoria (“the Department”) intervene in these proceedings.

   THE COURT ORDERS THAT:

6. The court provide to the Department copies of all relevant documents filed  in the proceedings, including the family report dated 13 February 2017 to enable the Department to consider the request to intervene in the proceedings.

   UNTIL FURTHER ORDER:

7. All previous parenting orders be suspended.

8. The child [X] born 2009 (“the child”) live with the father.

9. The father have sole parental responsibility for the child.

10. The mother’s time with the child be suspended.

11. Liberty to apply at short notice be granted to the parties.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 527 of 2016

MR VERRELL

Applicant

And

MS TEAGUE

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter is before me today for the father's urgent application in a case which seeks a recovery order for the parties' only child, [X], who was born on 2009.  The parties have been in and out of this court since the mother filed an initiating application on 22 January 2016.  She was legally represented at that time and in that application she sought many orders including orders for her and the father to have equal shared parental responsibility, for [X] to live with her, and was seeking orders on an interim basis that the father return [X] to her care and that the father be allowed to communicate with [X] by way of written agreement.

3. In her supporting affidavit with that application, she alleged that the father was withholding [X] and refusing to return [X] to her care and she made allegations about the father using drugs, particularly ice and also alleging that the father was violent, including physically violent, towards [X].  The matter first came before me on 22 February 2016 where the mother was legally represented and the father appeared in person.  On that occasion, the parties entered into consent orders where the child was returned to the father's care and the mother spending supervised time with [X] supervised by either Ms G or Ms A. 

4. An Independent Children's Lawyer (“ICL”) was also appointed and she has remained involved in this case.  The matter was listed for an interim defended hearing on 28 July 2016.  The father did not file any responding material at that stage.  The mother filed a further affidavit on 26 July 2016 where she expressed ongoing concerns about [X] and also referred to her mental health, which she had also referred to in her first affidavit.  She deposes that she has been diagnosed with a delusional disorder.  She refers to [X] returning to her home with some bruising on her back on 27 February 2016 and that she had taken [X] to Suburb A Hospital to be examined. 

5. The mother says that in early March 2016 she attended [X]’s school to collect her because she feared for her safety and spoke to [X] but [X] had told her that she did not want to leave school and go with her and so she left on her own.  She then deposes to having had an argument with her daughter, [A], who called the police where she was conveyed to Suburb A Hospital and was admitted to the mental health ward where she stayed for two weeks.  She had previously been hospitalised for mental health issues in 2012.  After her discharge, she was subjected to a community treatment order which obliged her to work with Clinic and work with a psychiatrist and case manager. 

6. The mother also referred to the mental turmoil and stress that the proceedings in particular were causing her.  When it came before me again on 28 June 2016, the ICL expressed some concerns about both parents and about the parents not providing her with information. Further interim orders were made to progress the case including listing the matter for a final hearing in June 2017 and ordering a family report.  The family report was released on 13 February 2017.  At the time of the family report interviews, the father had not filed any material and the mother was due to undertake a psychiatric assessment which had not been completed. 

7. Throughout 2016, the mother had continued to have supervised time with [X] that progressed to overnights on alternate weekends.  The family consultant referred to the concerns that the mother raised in her notice of risk filed on 22 January 2016 which include being concerned for [X]’s physical and emotional safety in the father's care and concerns that the father was a drug addict and alcoholic and had a violent temper.  The family consultant summarised her interview with the mother and observed that the mother would give long answers to questions and at times her answers were preoccupied by what she described as difficulties in her relationship with the father and that she became distressed. 

8. The family consultant formed the views that the mother's emotional reactivity was as a result of her anxiety and cognitive processing, rather than due to drug use.  The mother expressed concern that the father had not been engaged and committed as a parent when [X] was born and she made other complaints about their relationship.  She also told the family consultant that she had attended a number of professional services in the past year, including mental health professionals, to manage her psychiatric health after her discharge from Psychiatric Unit. 

9. The mother referred to the counselling that she is receiving to assist her with what she described as her self-care and support to manage the kids, as well as family violence and her symptoms of PTSD which she says she developed as a result of her trauma in her relationships and particularly her relationship with the father.  The mother referred to her two hospitalisations for psychiatric issues but denied that she had suffered from paranoia.  At [25] of the report the family consultant records that the mother denied suffering symptoms of paranoia and said:

   Ms Teague believed she was hospitalised because professionals had not fully investigated her concerns to determine whether they were real or not.

10. The family consultant observed at [27] of her report that, whilst the mother had engaged with a number of mental health services, her impression was that the mother had limited insight into the management of her mental health and had a limited capacity to engage in behaviour management strategies to assist her and also appeared to be in denial that her mental health had resulted in her significantly reduced ability to care for herself and her children.  The mother has four older children from previous relationships.  The mother believed that her mental health was stabilised and that [X] should be returned to live with her. 

11. The family consultant also referred to a number of concerns that the mother raised about the father's ongoing care of [X] including complaints that the father slept in on weekends, that [X] was not given breakfast, and that [X] was scared of her father and therefore not comfortable about waking him up. The mother also expressed concerns that the father denigrates her, particularly with regards to her mental health.  The family consultant also summarised her interview with the father and observed that the father was factual in his report about [X]’s time with her, the mother, and the reasons why he thought it was best for [X] to remain living with him. She further observed that he did not demean the mother or the mother's relationship with [X]. 

12. The father spoke about the actions that he had taken to support [X] spending time with her mother, and also that he wanted [X] to maintain a close relationship with her mother and half-siblings and he had been undertaking the majority of the travel in order to facilitate that.  He told the family consultant that he had been involved in [X]’s care from the time she was a few days old and he referred to the mother dumping [X] on him as he thought she wanted to travel.  The father said that [X] came into his long-time care when she was two years old in 2011 when the mother's mental health deteriorated and she was not able to care for her. 

13. At that time the Department of Health and Human Services (“the Department’) became involved and Children's Court orders were made placing [X] in the father's care.  The father spoke about the changes that he made to his life, including his working commitments, in order to be available to [X]. He spoke about [X]’s school and her friendships, and told the family consultant that he thought that [X] preferred to live with him rather than live with the mother. He said that for about six months in 2015 [X] had lived predominantly with her mother after her mother had obtained an interim intervention order in August 2015.

14. The father said that the mother did not allow him to see [X] until 26 December 2015, and he says that [X] told him she did not want to return to her mother’s care, and he informed the Department of his concerns, in particular with respect to the mother’s mental health.  The father told the family consultant that he hoped that [X] would be able to spend time with her mother on a more flexible and informal basis in future and did not believe that her time needed to be formally supervised as that reduced the amount of time that [X] could spend with her when the mother was well and the supervisor was not available. The father stated that he was not concerned about the mother withholding [X] when she was well.

15. The father spoke about being able to identify when the mother was unwell and when it would be necessary to restrict the mother’s time with [X].  He also spoke about [X]’s relationship with his partner.  The family consultant also interviewed two of the mother’s older children, the father’s partner and his partner’s older daughter.  At the time the family consultant interviewed [X], she was seven years and three months old.  The family consultant reported [X] as being a vivacious child who answered questions confidently and talked about enjoying school, and when she talked about where she wanted to live her answer was based on what her interests were, including who she enjoyed playing with, and she also spoke about missing the parent who she did not live with. 

16. [X] spoke about mum playing with her more than her dad. [X] spoke positively about the father’s partner and the family consultant conducted observations with the parents and other family members.  The family consultant also spoke to [X]’s school and the assistant principal reported that [X] always had her lunch and was well looked after, but was sometimes late to school and sometimes as late as 10.30am. The assistant principal advised the family report writer that the school had spoken to the father about [X]’s lateness and also referred to the contacts the school had had with the mother and said at time the mother came to the school and wanted [X] released from class so she could say hello. The assistant principal stated that she believed that [X] would prefer to concentrate on school life rather than seeing her mother at these times and that the mother presented at these times as being over the top.

17. The family consultant also spoke to the mother’s social worker who believed that the mother wouldn’t jeopardize her relationship with [X] and, at that time, didn’t think that there was any risk to [X] when with her mother and said that she continued to provide the mother with support about her anxieties about the father and her contact with him.  The family consultant assessed that the mother was impressed as having emotional warmth with [X] and that they enjoyed their time together. She expressed some concern about whether or not the mother was able to provide a structured routine for [X]. 

18. The family consultant thought that the father impressed as being “grounded in the practical tasks for parenting” and was able to provide detail about [X]’s care needs and how he managed those range of responsibilities.  She noted that [X] has spent limited time in her mother’s care throughout her life.  The family consultant identified the risk issues which were raised as the mother’s concerns that the father had physically harmed [X] when she was younger and was physically violent towards her and her father’s concerns that at times the mother’s mental health was unstable and that [X] was at risk at those times. Both parents raised the issue of past drug addiction with respect to the other parent.

19. The family consultant expressed some concern about the mother’s lack of insight into the factors that have contributed to her deteriorating mental health and expressed concern that the mother had demonstrated a limited capacity to cope under stress.  She did not observe either parent to appear drug affected and she recommended that the parents share equal parental responsibility, that [X] live with her father and spend regular time with her mother. She did not think the time needed to be supervised unless the father was concerned that the mother's mental health was deteriorating and that that would place [X] at risk or result in the mother not returning [X] to the father's care. The family consultant recommended that if the father became concerned that [X] was unsafe in the mother's care or that the mother would not return [X] to his care, then he should be able to keep [X] until he is confident about her safety with the mother. 

20. The matter came before me again on 7 March 2017 and, at that stage, the father had still not filed any material with the court. Further interim consent orders were made which were largely in line with the family report including a provision in order 7 which addressed the mother's mental health.  Dr M, a consultant psychiatrist, prepared a psychiatric assessment dated 7 February 2017.  He records that the mother told him that she thought she was being independently psychiatrically assessed because of her hospitalisations and in her words:

    What they say is a delusional order and you cannot say something is delusional if it has not been fully investigated.

21. The mother also referred to believing that she was suffering from post-traumatic stress disorder as a result of past events. Dr M recorded these as including that her ex-husband had molested all of her children and had been drugging them and herself.  She referred to herself as being alone and keeping to herself because she has little trust in people.  He refers to her psychiatric history.  He recorded that at times during the interview, her effect was volatile and she became tearful several times, including when speaking about the sexual abuse of her children and the loss of parenting time. 

22. He did not detect any overt form of thought disorder and referred to diagnosis of Axis I delusional disorder and Axis II borderline personality disorder with obsessive compulsive personality traits.  He expressed the view that the mother was not able to show any insight into her psychiatric illness and remained convinced that sugar is poisoned, that her children had been sexually abused, and that her home had been invaded on several occasions by her former partners.  He referred to the mother stating there was evidence to support her sexual abuse allegations but the family contacts of her previous partner, Mr T, has meant evidence has been either hidden or destroyed. 

23. He expressed concern about the mother's prognosis, given her lack of insight, and continued use of marijuana and expressed the view that she would likely need to be on medication for the rest of her life and that if she stopped medication, particularly while continuing to use marijuana, then there was significant risk that she would have a recurrence of a major psychotic episode.  At the trial on 19 June 2017, the mother and ICL were represented by counsel and the father appeared in person. The parties reached consent orders which provided for the parents having equal shared parental responsibility, subject to the father being able to make the decision if he and the mother were not able to agree, that [X] live with the father and spend regular time with the mother during the school terms and holidays as well as special days. Order 13 reads as follows:

    Should the mother's mental health deteriorate and the father considers that [X] will not be safe in the mother's care, the mother's time shall revert to supervised time with the supervisors being mutually agreed upon and to revert to unsupervised upon a provision of psychological evidence from the mother that her mental health will not impact on her ability to parent [X].

24. A notation was made that if the father was to activate the provisions in order 13, he was to notify the mother by way of text that he considered that her mental health had declined and that he would be changing the mother's time to supervised time.  On 23 October 2017, the father filed an application in a case seeking a recovery order.  He filed a brief affidavit in support stating that the mother had prevented all communication between him and [X], she was not sending [X] to school, he was concerned about the mother's mental health and was worried that the mother might move [X] to an unknown location. He referred to Dr M's psychiatric report. 

25. When that matter came back before me on 13 November 2017, the mother was represented by a different law firm than she had been previously. I ordered an urgent s.11F assessment and noted that [X] had not been at school for a month. The mother filed a response to the father's application in a case and affidavit in support and in her affidavit stated that, whilst she had been diagnosed with a delusional disorder and had suffered deteriorating mental health in the past, she was currently stable and annexed a letter from her doctor. She outlined concerns that she had for [X] and referred to Facebook messages between herself and the father's partner where she alleges the father's partner was saying that they had broken up. There were concerns about the father maybe having recommenced using drugs and reported that [X] was expressing concerns about the father not getting out of bed and that she was being yelled at.

1. The mother referred to the father's new partner serving her with the father's application for a recovery order and complained about the father's partner yelling at her and being abusive.  The mother referred to [X] being interviewed by the Suburb A Police SOCIT Unit on 29 September 2017 and said that the Department was aware that [X] was in her care and had not done anything about removing her from her care. 

2. The child inclusive s.11F conference took place on 14 November 2017. Both parents were seeking that [X] live primarily in their respective care and have supervised time with the other parent. The mother was frustrated about reports that she was mentally unstable and not capable of caring for [X].

3. The mother spoke to the family consultant who prepared the s.11F memorandum about withholding [X] because of her concerns that the father does not care for her adequately, that [X] was tired and could not sleep at the father's home, that he yelled at [X], hit [X], and that [X] had told her that she hates her father. The family consultant also referred to the father's concerns and interviewed [X]. The family consultant was of the view, based on that limited preliminary assessment, that there were no serious risk indicators that warranted the mother withholding [X] from her father. [X] had not attended school or had contact with her father since around 29 September 2017. The family consultant spoke to the Department who advised that there were no risks that would meet their threshold for intervening.

4. She observed that [X] was initially nervous and did not want to look at her father and whilst at first she was hesitant, she then settled into a more familiar pattern with him.  The family consultant observed that there was nothing to suggest that they did not have anything other than a warm and familiar relationship.  The family consultant assessed that [X] needed to return to her routines, including her school friendships and extracurricular activities, and referred to [X] having a loving relationship with both her parents.  On 14 November 2017, I made orders that the final orders made on 19 June 2017 would remain in full force and effect, the father collect [X] from the court that day and I made an order reappointing the ICL. 

5. The mother filed an application in a case and contravention application on 13 February 2018.  In the contravention application, she alleged that the father had breached the shared parental responsibility order in several respects and had also withheld [X] from her care on various occasions and had not allowed [X] to engage in swimming which was, as she says, an agreed extracurricular activity.  The matter came before me on 20 February 2018 and the father denied breaching the orders. A variation of the orders were agreed to which included an order that each parent was to ensure that [X] attend school on time on each scheduled school day unless they had a medical certificate. 

6. When the matter next came before me on 6 April 2018, the father was not in attendance at court and the counsel for the mother and the ICL expressed concerns about the father unilaterally changing [X]’s school.  I made orders on that occasion including an injunction with respect to [X]’s school.  The matter came before me again on 26 April 2018 where the father was in attendance and both the mother and the ICL were represented by counsel.  On that occasion the matter again was resolved by consent which included varying the final orders made in June 2017 with respect to parental responsibility, removing the part of the order that gave the father a power of veto if they did not reach agreement, restraining the parents from changing [X]’s current school, varying the spend-time-with orders and, significantly, having the ICL remaining involved in the proceedings for a further 12 months with the ICL being able to request the parties to undergo random drug screens. The order also included for the parties to arrange counselling for [X] and keep the ICL informed of their progress in that regard. 

7. The supervision provision in the orders remained and a notation was made that during that 12 month period that the ICL remained involved with the parents if the father wished to invoke that provision, that he would notify the ICL of his intention first. 

8. The matter is before me today as a result of the father issuing an urgent application in a case on 2 July 2018 seeking a recovery order for [X] to be returned to his care.  I listed the matter today so that the father could serve the ICL and the mother as I was particularly concerned that it would be important to hear from the ICL given that the father had indicated that the ICL had been in communication with both parents in the past couple of weeks. 

9. The mother attended in court today.  The mother was emotional and distressed and had difficulty containing herself, frequently interrupting the court.  She raised similar concerns about [X]’s care that she has raised previously.  She had again unilaterally withheld [X] and she claimed that she had attended court on Friday to try and find out how to file proceedings but had been unable to get legal assistance.  Throughout the previous two sets of proceedings, she has had legal representation and the father has been self-represented.  The mother complained today that the ICL and the court have not taken her concerns seriously in the past and feels that [X]’s best interests are not being looked after. 

10. She made allegations of sexual abuse and other abuse and complained that the father had breached the orders and was not getting [X] to school on time.  She said she believed it would not be safe to return [X] to the father's care.  The ICL had made a number of inquiries, including with the school and the Department, and had made her own notification to the Department.  The Department's liaison officer to the court also was able to provide information to the court this morning that the Department is currently undertaking an investigation of this matter.  The ICL expressed the view that [X] should be returned to her father's care. The court shares that view.

11. I had made inquiries about having [X] brought to court this afternoon so that a family consultant could conduct a changeover.  I explained very clearly to the mother that if she refused to comply with an order to return [X], it would be necessary for the police to effect a recovery order.  The mother has had the assistance of duty lawyer advice this morning and was also in court when the liaison officer advised the court that they were undertaking an investigation which will involve them interviewing both parents at their homes.  Although she had indicated earlier that she would bring [X] to court somewhat reluctantly, when the matter came before me she said that she was unable to do so. 

12. The mother claims she could not get in contact with her adult son who was looking after [X] and then stated that she would not return [X] if she did not believe it was in [X]’s best interests.  She left the court with no choice but to issue a recovery order for the police to return [X] to the father's care immediately.  I have real concerns that, as can be seen from the somewhat lengthy history I have given in this matter, that there is a recurring pattern in this matter and I have no choice but to suspend the previous parenting orders. I also make an interim order that the father have sole parental responsibility for [X], that [X] live with the father and that the mother's time be suspended.  In my view, the mother's time will need to be supervised.  There will be an issue about who is going to be able to supervise that time.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  30 July 2018