VITALE & VITALE SPERTI
[2010] FMCAfam 748
•26 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VITALE & VITALE SPERTI | [2010] FMCAfam 748 |
| FAMILY LAW – Parenting – application by mother for orders that two children aged 9 and 7 spend time with her – where there have been two previous final hearings – where orders were made in 2007 that the mother spend no time with the children – where the father seeks dismissal of the mother’s application – whether the mother’s application should be dismissed at a preliminary stage. |
| Family Law Act 1975, s.60B |
| Rice & Asplund (1979) FLC 90-725 Vitale Sperti & Vitale (2004)FamCA1399 |
| Applicant: | MS VITALE |
| Respondent: | MR VITALE SPERTI |
| File Number: | NCC 2847 of 2009 |
| Judgment of: | Terry FM |
| Hearing date: | 22 June 2010 |
| Date of Last Submission: | 22 June 2010 |
| Delivered at: | Newcastle |
| Delivered on: | 26 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Duane |
| Solicitor for the Applicant: | Mark M Morris |
| Solicitor Advocate for the Respondent | Ms Heaton |
| Solicitor for the Respondent | Claire Legal |
| Solicitor Advocate for the Independent Children’s Lawyer | Ms Hafey |
| Solicitor for the Independent Children’s Lawyer | Legal Aid NSW |
ORDERS
That the application of the mother filed on 9 November 2009 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Vitale & Vitale Sperti is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2847 of 2009
| MS VITALE |
Applicant
And
| MR VITALE SPERTI |
Respondent
REASONS FOR JUDGMENT
Introduction
On 30 July 2007 Justice Flohm made a final order that Ms Vitale spend no time with her children [Y], then 6 and [Z], then 4.
The mother has applied for the discharge of this order. She has a mental illness, but it is her case that her mental health is currently stable and the children three years older and that therefore a reconsideration of the 2007 order is appropriate and desirable.
The children live with the father. He is opposed to the children spending time with the mother and seeks the dismissal of the mother’s application. It is his case that the mother has a history of mental illness dating back more than twenty years, that her condition had always fluctuated, and that even if her mental health is stable at the moment (which he does not necessarily accept), this is not a change of circumstances which justifies reconsideration of Justice Flohm’s order.
The matter was listed before me on 22 June 2010 for argument about whether the mother’s application should be dismissed at a preliminary stage, or whether it should continue through the court system and follow the normal course, potentially involving an interim hearing, the preparation of a third experts report and a third final hearing.
The evidence
The mother relied on her application and affidavit filed on 9 November 2009 and the affidavit of her treating psychiatrist, Dr N, filed on
17 June 2010. The father relied on his response and affidavit filed on 26 February 2010.The hearing before me proceeded by way of submissions.
Parenting arrangements for [Y] and [Z] have been the subject of two previous final hearings. Both were conducted by Justice Flohm in the Family Court at Parramatta.
The first hearing took place in 2004 and Justice Flohm delivered her decision on 24 May 2004. The reasons for this decision are available.
The second hearing commenced in December 2006 and concluded in May 2007. Justice Flohm delivered her decision on 30 July 2007, but the reasons for this decision are not available. The decision was delivered orally, the reasons were never settled and published and Justice Flohm has now retired.
Background
To compile the background facts I have had reference to Justice Flohm’s 2004 decision and to the documents on the court file.
The mother and father commenced cohabitation in 1991 in
New Zealand. They have three children. The eldest, [X], was born in New Zealand in 1993. [X] has lived with her maternal grandmother in New Zealand since she was about three years old and has never been part of the family law proceedings in Australia.The parties came to Australia in March 2001 and [Y] and [Z] were born in Australia, in 2001 and 2002 respectively.
It was the father’s case that the mother had shown signs of schizophrenia when the parties were living in New Zealand and was on medication during some of that period. Justice Flohm noted in her 2004 decision that the mother denied the diagnosis but admitted having been on medication.
On 3 January 2003, when [Y] was twenty months old and [Z] four months old, the mother suffered an acute episode of mental ill-health and was “admitted to [B] where she was diagnosed as presenting in the manic phase of bipolar disorder.”[1]
[1] Vitale Sperti & Vitale (2004)FamCA1399 paragraph 9
The children remained in the father’s care during the mother’s hospitalisation.
The mother was discharged from [B] on 13 February 2003. On 26 March 2003 the father filed an application in the Federal Magistrates Court at Parramatta seeking orders that the children live with him and spend supervised time with the mother. In his application he nominated 3 January 2003 as the date of final separation.
On 2 May 2003 interim consent orders were made which provided for the children to live with the father and spend supervised time with the mother.
In June 2003 the proceedings were transferred to the Family Court at Parramatta, and a psychiatrist, Dr R, was appointed to prepare a report.
At the final hearing in April/May 2004 both parents sought orders that the children primarily reside with them.
Justice Flohm handed down her decision on 24 May 2004. She found that the mother suffered from a mental illness but said as follows:
“I am satisfied that the mother is currently functioning well and that her condition is stable. I am satisfied that the mother’s pressured speech, her argumentative attitude and her defensiveness when her parenting skills are challenged, all of which I observed during her oral evidence, are likely to be explicable in terms of a combination of what are described as the residual social deficits associated with her condition, exacerbated by a stressful situation.”[2]
[2] Reasons for decision 2004 paragraph 66
Justice Flohm made unfavourable findings about the father’s attitude to the mother and expressed concern about whether the children would maintain a relationship with the mother if they lived primarily with the father. She ordered that the children be returned to the mother’s primary care, and said as follows:
“I am satisfied on all of the evidence and the findings that I have made that, of the two proposals before me, the children’s return to the care of the mother is likely to be the outcome which best serves the children’s interests, both in the short and the long term.
Justice Flohm also said as follows however:
The orders I make…include orders that the transition back to the mother’s primary care will be overseen by [C], a specialist organisation supportive of the mother and the children and that the mother will continue to be closely monitored and supported by the [B] Mental Health Team. The orders include regular and substantial contact with the father.”[3]
[3] Reasons for decision 2004 paragraphs 100, 101
Justice Flohm’s orders went on to provide that if the mother failed to successfully complete the program at [C] the children were to live with the father. An order was made for the mother to have contact with the children in this eventuality but the order was hedged about with conditions.
The mother and children entered the [C] Residential Program on
26 June 2004 but the mother was observed by staff to be “mood disordered, erratic and unable to focus on the care of her children.” On 28 June 2004 the mother was transported to [B] Hospital and staff at the cottages facilitated the return of the children to the father.[4][4] Letter [C] to the Independent Children’s Lawyer dated 30 June 2004, annexed
Throughout the remainder of 2004 and into 2005 the children lived with the father and spent no time with the mother. The mother had continuing difficulty with her mental health. She had a further admission to [B] between 27 October 2004 and 20 December 2004, and on 28 February 2005 she was admitted to [omitted] Hospital. On 15 March 2005 she was transferred to [B] and she remained there until 21 April 2005.[5]
[5] Taken from Dr P’s report.
During this period the mother formed a relationship with Mr M, who has bi-polar disorder.
In August 2005 the mother filed a contravention application and an application for recovery order. These applications, which were filed in the Federal Magistrates Court, were subsequently dismissed and the mother pursued instead orders which would allow her to resume spending time with the children.
The proceedings were transferred to the Family Court. Dr P was engaged to prepare a second experts report and the matter was listed for second final hearing before Justice Flohm.
The second final hearing took place on two days in December 2006 and a further day in May 2007 and Justice Flohm handed down her decision on 30 July 2007. She discharged all existing parenting orders and ordered that the children live with the father and that he have sole parental responsibility for them. Order 3 provides that:
“3. Ms Vitale (“the mother”) is not to spend time with the children.”
The mother and father were each ordered to provide a postal address to the other parties solicitors and the father was ordered to provide the mother with a photograph of each child on at least an annual basis and copies of their school reports (with identification of the school removed).
The mother was given liberty to send the children letters, cards gifts and photographs to the postal address provided by the father.
Orders 10 & 11 provide that:
10. By 31 January 2011, the father is to take all reasonable steps to enrol the children in a program which is designed to assist the children to obtain an understanding of the mother’s mental health history and status and the father is to take all reasonable steps to ensure that the children complete such program.
11. That upon the conclusion of any program as outlined in
Order 10 hereof and in the event that the children or either of them expresses a wish to see the mother, the father is to take all reasonable steps to facilitate the child/children seeing the mother
It is regrettable that the reasons for the 2007 decision are not available. It is abundantly clear, when the 2004 decision is taken into account, that Justice Flohm would not have made an order preventing the mother from spending time with the children lightly, but many matters could have influenced her to make Order 3, including evidence by the father about the effect on the children of spending time with the mother in 2003/4 when she was acutely mentally ill, the contents of Dr P’s report (and he was asked to consider the effect on the children of having no further contact with the mother), the mother’s relationship with Mr M or some other evidence which emerged during the hearing. Without the reasons for decision it is impossible for me know which particular matters weighed most heavily with Justice Flohm.
The mother’s submissions
The mother’s submitted that Order 3 should be reconsidered because her mental health was now stable (in fact Dr N described her as being in remission), she was compliant with her medication and the children were now three years older. By implication it was the mother’s case that the children would now benefit from/cope well with spending time with her.
The mother moved to [T] in September 2007 and since then she has been under the care of [M] Mental Health Service. In support of her case she relied on the reports attached to the affidavit of Dr N, her treating psychiatrist.
In his 21 October 2009 report Dr N said that the mother had Bipolar Disorder. He said that she had last been admitted to the in-patient unit in December 2008 and was placed on a Community Treatment Order which expired in August 2009. Dr N asserted that:
“[The mother] has been well all this year (2009) and has been compliant with her medication regimen…”
In his 7 June 2010 report Dr N described the mother as having been diagnosed with Schizoaffective Disorder. He stated that:
“Currently her medication for this condition consists only of Lithium 450mg two tablets daily……Schizoaffective disorder is a chronic illness which typically runs a fluctuating course. Generally speaking the condition requires continuous long term treatment. On treatment, patients with the disorder often experience prolonged periods of stable mental health.”[6]
[6] Annexure “C” to affidavit of Dr N filed 17 June 2010
Dr N recorded that the mother had “separated from Mr M who has a mental illness and difficult personality traits. He was a destabilising influence on her. She has managed the separation admirably and has remained resolute in distancing herself from him.”[7]
[7] Dr N’s report of 7 June 2010
Dr N also said as follows:
“In my opinion Ms Vitale should have access to her children, but initial contacts with her children should be supervised by a professional who can assess the appropriateness of her interactions with them and make further recommendations as to the course of ongoing contact.”
The father’s submissions
The father submitted that even if the mother’s mental health was currently stable, this was nothing new. During the mother’s long history of mental illness she had always had periods of stability between periods of acute ill health.
By implication it was the father’s case that Justice Flohm must have factored in the fluctuating state of the mother’s mental health when she made the 2007 order.
The father said that in any event the mother’s behaviour during the court proceedings on 22 June 2010 called into question whether she was indeed in a stable state of mental health.
During the hearing the mother sat beside her counsel at the bar table. She took considerable offence to my observation from the bench that she had a long history of mental illness. She loudly denied that she was mentally ill, and thereafter continued to interrupt loudly, preventing her counsel from properly proceeding with his submissions. I adjourned so that the mother’s counsel could speak to her.
The hearing resumed after a short period and the mother’s counsel continued his submissions, but the mother was unable to contain herself for long and again began speaking loudly over her own counsel. The mother’s counsel finished his submissions with some difficulty.
The father’s advocate then began her submissions, but the mother repeatedly loudly interrupted her and ignored my requests that she cease to do so.
It was impossible to conduct the hearing under these circumstances, and the matter was adjourned and the mother requested to remain outside the courtroom while the father’s advocate and the Independent Children’s Lawyer completed their submissions.
The mother’s behaviour is particularly concerning because it resonates with some of the observations of the mother contained in the letter sent by [C] to the Independent Children’s Lawyer on 30 June 2004. The letter explained why, two days after the mother’s admission to [C] with the children, staff arranged for her to be transported to [B] Hospital and for the children to be collected by the father.
Some of the concerns expressed were that the mother had “advised staff that she was not mentally ill” and that she was “unable to regulate her emotional outbursts in front of the children….her mood would escalate into verbal aggression towards staff very quickly. Her emotional state would fluctuate significantly between calmness, co-operation and then quickly move towards agitation and verbal aggression.”
The mother’s behaviour during the hearing causes me disquiet, but I do not have the expertise to make findings about the mother’s mental health based on my own observations. I therefore intend to consider the mother’s application on the basis that she might ultimately be able to establish that her behaviour in court was an aberration caused by the stress of the proceedings and that she is currently experiencing a prolonged period of stable mental health.
The Independent Children’s Lawyer’s submissions
The Independent Children’s Lawyer, who has been involved in the matter since 2004, supported the father’s position that there had been no change of circumstances and that the mother’s application should be dismissed.
The applicable law
In deciding whether to make a particular parenting order about [Y] & [Z] I must treat the best interests of the children as the paramount consideration.
It is generally not considered to be in children’s best interests for their parents to repeatedly litigate about parenting arrangements for them. In the 1979 case of Rice & Asplund[8], Evatt CJ said as follows:
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which the order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, as counsel for the appellant submitted, change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that there is some changed circumstance which will justify such a serious step. Some new factor arising, or at any rate some factor which was not disclosed at the previous hearing which would have been material. These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require a court to consider afresh how the welfare of the children should best be served. These principles apply whether the original order was made by consent or after a contested hearing. The way they apply, and the factors which will justify the court in reviewing a custody order, will vary from case to case. “
[8] Rice & Asplund (1979) FLC 90-725
In the 2008 decision of SPS & PLS[9], Warnick J conducted a very thorough review of the law relating to the so-called “rule in Rice & Asplund”. He said as follows:
“As seen above in Rice & Asplund, Evatt CJ recognised that a purpose of the rule was to discourage endless litigation. I opine that the public interest in the finality of litigation is at least partly derived from a desire to avoid public expense of subsequent hearings, and the imposition of them on court time. In the case of In the marriage of McInerney, Nygh J moved beyond the general position of public interest in the finality of all litigation to purposes more specific to family law. He said the principal that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing that this court would wish to see would be a perennial football match between parents who, because of the strict principles of Res Judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other, but especially upon the child.”
[9] SPS & PLS (2008) FLC 93-363
Warnick J also went on to say as follows:
“Another end served by the rule in Rice & Asplund is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This evil is avoided by requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.”
Warnick J emphasised however that:
“At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the best interests principle.”
and went on to say:
“Thus, in my view, when a threshold question described in Rice & Asplund is determined as a preliminary matter it remains a determination on the merits. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason such as failure of a party to appear or some lack of compliance with form or procedure, but rather because assuming the evidence of the applicant is accepted there is insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought to be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”
Discussion
Parenting arrangements for [Y] and [Z] have been the subject of two previous final hearings. If the mother’s application is allowed to proceed through the court system, considerable public expense will be incurred in the provision of court time, the funding of a third expert’s report, the funding of an Independent Children’s Lawyer and possibly, the provision of legal aid to one or both of the parties. Further proceedings will undoubtedly be worrying and stressful for the father, and this has the potential to impact adversely on the children.
Therefore before allowing the matter to proceed further through the court system I need to be satisfied that something has changed since 2007 or that circumstances now exist which mean that there is a real possibility that if the matter is heard afresh the court might make a different order to that made by Justice Flohm.
The change of circumstances on which the mother relied was that she was enjoying a prolonged period of stable mental health.
There is some strength in the father’s submission that the fact (if true) that the mother is enjoying a prolonged period of stable mental health does not represent a change of circumstances. It is clear from all the material that since 2003 the mother has experienced a number of periods of acute mental illness interspersed with periods of stability, and Dr N described the mother’s illness as “a chronic illness which typically runs a fluctuating course.”[10]
[10] Dr N’s report dated 7 June 2010.
However in my view the mother’s problem is not that she is unable to point to a change of circumstances. The mother’s problem is that the children have not yet commenced the program required by Orders 10 and 11 of the 30 July 2007 orders.
The father is obliged by no later than 30 January 2011 to enrol the children in a program designed to help them gain an understanding of the mother’s mental health. I was informed by the Independent Children’s Lawyer that the 2011 date was chosen because it was considered that the children would by them have reached the recommended age for attendance at such a program.
The father is obliged to facilitate the children seeing their mother if, upon the conclusion of the program, either of them expresses a wish to do so.
By requiring that the father enrol the children in the program and by requiring that he facilitate the children spending time with the mother if they express a wish to do so after completing the program, Justice Flohm was clearly not completely shutting the door on the possibility of the children spending some time with the mother in the future.
I intend to dismiss the mother’s current application because in my view it is premature. However if no time with the mother eventuates after the children complete the program and if the mother is in a stable state of mental health and brings another application in the future, the matter may well require some deeper investigation, regardless of whether the periodical stability of the mother’s mental health is a new circumstance or not.
It will be stressful for the father, and expensive for the public, if further proceedings occur in relation to [Y] and [Z]. However it is a serious matter for children if one of their parents is shut out of their lives for the entirety of their childhood, and not every case can be simply disposed of by a single decision which then stands until the children are eighteen.
The mother should in due course seek confirmation from the father that the children have been enrolled in and are attending a program of the kind envisaged by Order 10, and she would be well advised to ensure that she commences writing to the children and sending them gifts and photographs prior to them commencing this program. This may make all the difference to whether the children express an interest in spending time with her in the future.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate:
Date: 27 July 2010
marked “ C “ to the father’s affidavit.
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