Watson and Harding

[2011] FamCA 92

FAMILY COURT OF AUSTRALIA

WATSON & HARDING [2011] FamCA 92

FAMILY LAW – CHILDREN – with whom a child lives – mental illness of parent
FAMILY LAW – CHILDREN – with whom a child spends time – supervision
FAMILY LAW – CHILDREN – with whom a child spends time – permission for child to travel overseas

APPLICANT: Mr Watson

RESPONDENT: Ms Harding

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 12820 of 2007

DATE DELIVERED: 9 February 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 9 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Sevdalis

SOLICITOR FOR THE APPLICANT: RobinsonGill Lawyers

COUNSEL FOR THE RESPONDENT: Ms Small

SOLICITOR FOR THE RESPONDENT: Macgregor Barristers & Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

Not by consent

1. All prior orders relating to the parenting of the child M born … March 2007 including any airport watch list order, be and are hereby discharged and that the Father’s solicitors shall as soon as practicable serve a sealed copy of these Orders on the Marshalls of the Family Court of Australia and the Australian Federal police.

By consent

1. The Father have sole parental responsibility for the child M.

2. The child M live with the Father.

3. The child M spend time with the Mother as follows:

   a.For 2 hours each alternate Thursday to be supervised by a professional supervisor arranged and paid for by the Father, to take place from 10.30am to 12.30pm commencing 17 February 2011;

   b.For 2 hours each other Thursday to take place at children’s contact centre to be nominated by the Mother being a centre within a 10 kilometre radius from the home of the Father and being a centre which will provide staff to supervise the time between the Mother and M (“the Contact Centre”), at a time nominated by the Co-ordinator of the Contact Centre, commencing 10 March 2011; and

   c.In the event that the Contact Centre provided for herein is not immediately available the Mother may spend time with M provided that the Mother nominates a supervisor who is approved by the ICL to supervise her time with M and in that case the time with M shall take place on the other Thursday from 10.30am to 12.30pm with the mother to arrange collection and return from the father’s residence, and the Father shall be informed of the supervisor’s mobile telephone numbers. 

4. For the purposes of implementing 4b herein:

   a.Within 7 days of the making of these orders the Mother shall nominate a Contact Centre and advise the Father in writing of the details of the centre;

   b.Within 3 days of the Mother advising the Father of the details of the nominated Contact Centre each of the Mother and the Father shall make telephone contact with the staff at the contact centre and make an appointment for an  intake interview;

   c.Each of the Mother and the Father shall attend the intake interview and complete any documents as required by the Contact Centre and thereafter follow all reasonable directions of the Contact Centre necessary to use the service ; and

   d.The father shall deliver the child M to the Contact Centre at the commencement of each period of time with the Mother as directed by the centre and the Mother shall attend the Contact Centre to exercise her time with the child at times as directed by the Contact Centre staff.

5. For the purposes of implementing 4a herein:

   a.The Father shall make contact with the supervisor or supervision service within 48 hours of the making of these orders and thereafter complete any documentation required by the service necessary to engage the service;

   b.The Father shall provide to the supervisor the contact details for the Mother to enable the service to communicate with the Mother;

   c.The Mother shall negotiate with the supervisor a meeting place and time for her contact with M to take place;

   d.The Father shall do all things necessary to ensure that M attends at the place nominated for time with the Mother to take place at the nominated time; and

   e.The father shall be responsible for the payment of all fees associated with the use of the paid supervisor.

6. The Mother’s time with M shall be suspended as follows:

   a.For two periods of time per year being not more than 3 consecutive contact occasions of time with the child  ( that is 3 weeks) and up to  6 consecutive contact occasions (6 weeks) to allow the Father and M to travel  on holidays (“holiday time”) provided that the Father advises the Mother in  writing of his intention to holiday with the child not less than one month prior to the anticipated date of departure and provides to the Mother in writing an itinerary setting out the particulars of the travel plans, including flight and accommodation details and a phone number at which the child can be contacted during the holiday period; and

   b.The first period of holiday time shall take place from 2 pm 17 February 2011 to 3 March 2011 and the second period of up to 6 weeks holiday time shall not take place until at least 9 months of the making of these orders.

7. In the event that the Father and the child exercise holiday time as provided for in paragraph 8 herein then the mother shall be entitled to make up time with M such time to be taken by extending the period of time with the child as provided for in 4a and 4b herein or arranging additional time on days agreed between the parents.

8. The Mother shall forthwith provide to the ICL and the Father an irrevocable authority, permitting the ICL to discuss with the Mother’s psychiatrist, psychologist and mental health nurse or case manager (“the Mother’s treating professionals”) the Mother’s state of mental health and compliance with her medication including any hospital attendances by the Mother.

9. The ICL shall for a period of 12 months be at liberty to discuss with the Mother’s treating professionals the Mother’s state of mental health and compliance with her treatment regime.

10. The Mother shall arrange for her treating professionals to prepare a report addressing the matters set out herein such report to be sent to the ICL and to the Father’s solicitors each 4 months for the next 12 months the first report to be prepared  four months from the date of the making of these orders, the report to address the following:

    a.The Mother’s  compliance with treatment program including attendance with her treating professionals;

    b.Any hospital admissions by the mother including any attendance at the emergency department; and

    c.The Mother’s level of insight into her illness.

11. The parents shall instruct Mr P to prepare an updated family report not less than five months from the date of the making of these orders such report to address the relationship between the Mother and M and whether from the report writer’s view the child M is ready to increase the time with his mother including addressing the Mother’s capacity to care for the child in an unsupervised setting taking into account the Mother’s state of mental health as reported by her treating professionals, copies of the report to be given to the solicitors for the Mother, Father and to the ICL.

12. The cost of the report by Mr P be borne equally by the parties and in this regard Legal Aid Victoria is requested to fund the Mother’s half share of the report.

13. The Father shall obtain a report from the paid supervisor regarding the interaction between the Mother and M during their time together, such report to be prepared not earlier than five months from the date of the making of these orders and to be paid for by the Father and copies to be provided to the solicitors for the Mother, the Father and the ICL.

14. The ICL shall obtain a report from the Contact Centre regarding the interaction between the Mother and M during their time together, such report to be prepared not earlier than five months from the date of the making of these orders and copies to be provided to the solicitors for the Mother and the Father.

15. Upon the release of the up dated family report the ICL shall arrange a Roundtable Dispute Management (“RDM”) conference for the parties and the parties shall attend such RDM to discuss the future time that M will spend with his Mother and under what circumstances and if agreement is reached to enter into Consent Orders in relation to the Mother’s time with M, and any costs for such RDM to be borne by the parties equally.

16. The Father shall facilitate M communicating with his Mother by telephone each Tuesday and Sunday evenings between 6-7.30pm with the Father to telephone the Mother.

Not by consent

1. The Father is hereby authorised to obtain an Australian Passport for the child M independently of the consent of the Mother.

By consent

1. The ICL be discharged 12 months from the making of these orders.

2. Pursuant to ss65DA(2) and 62B of the Family Law Act 1975 the particulars of which obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

3. Each parent shall notify the other in the event of any change to their telephone number and or residential address, such notice to be given not less than 24 hours after any such change.

4. The Father shall notify the Mother as soon as practicable in the event of any accident or injury to M requiring M to be hospitalised.

5. The Mother shall advise immediately or cause some person on her behalf to advise the ICL of any hospital admission by her, and following the discharge of the ICL the Mother shall notify the Father or cause the Father to be notified by SMS text message of the Mother’s hospitalisation.

6. Otherwise all existing application shall be dismissed and the case removed from the list of cases awaiting determination.

   NOTATIONS

   AThe Father nominates Ms A as the paid supervisor and in this regard, Ms A is available for supervision to commence on 17 February 2011 at 10.30 meeting the Mother at the Mother’s place of residence or as the Mother otherwise directs.

   BThe Mother nominates a Melbourne Contact Centre as the child contact centre and in this regard the Contact Centre is not able to immediately accommodate the parties.

   CThe Mother nominates Ms M as one of her supervisors who is yet to be approved by the ICL.

   DThe Father intends to take the child M to Fiji for a holiday leaving after the conclusion of time with the Mother on 17 February 2011 and returning so that the child M can spend time with the Mother on 3^rd March 2011 supervised by the Father’s paid supervisor.

   E.The questions of whether these Orders were interim or final, and whether or not there should be a Watch List order and passport obtained for M, were not by consent.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12820 of 2007

Mr Watson

Applicant

And

Ms Harding

Respondent

REASONS FOR JUDGMENT

1. Little M is almost four and is living with his father.  In the past, he spent almost equal periods with both parents for a substantial time, and there were various arrangements before that. 

2. Given the very limited nature of the one remaining issue, I need not go through the entire history of the case.  I heard some evidence yesterday.  The mother told me that she had a fear that if the father were permitted to take M out of Australia, he would not return.  She could not point to anything substantive to underpin that fear.  She said that her concern was that the father came from the UK, his family is there, and she said either directly or by inference that his roots or links are there.

3. I am not dismissive of the fear expressed by the mother, in the sense of saying that as the psychiatric evidence is that she suffers a delusional disorder.  I should not consider her expressed concerns.  I think her state of health at this stage is improving, after what was obviously a very difficult end to 2010.  So, without being able to categorise her concerns as a part of her psychiatric illness, I do find that there is no foundation to the fear that she expressed.

4. The father has lived in this country for 13 years.  He was in employment here.  He now receives the benefit of insurance payments since he has not been able to work, and they are paid in this country.  He has all his immediate family in this country.  That was the undisputed evidence.  He has his mother, his sibling and sibling’s spouse, and niece or nephew or any nieces or nephews.  So apart from more distant relatives around the world, that is where he has his family base.  He owns his house in Australia, and he is very strongly connected to the medical experts who care for his epilepsy in Australia. 

5. The objective evidence satisfies me that it is appropriate for the father to have the sort of freedom of movement with M that he requests.  It is to M’s benefit to be able to travel with his father in that way.  Of course, it is important that he have the benefit of coming home to his mother, and I am satisfied that the Watch List order that was put in place for interim purposes should be discharged, and that the father should be able to obtain a passport for M.

6. So if I look at order 1 of the proposed orders, it is very clear that any Airport Watch List order should be discharged, and that is appropriate.  We should add to the draft orders that someone serve a copy of the orders on the Marshal of the Family Court and the Australian Federal Police.  That should probably be the father’s solicitors.  So I am just going to add in that the father’s solicitors shall serve a sealed copy of these orders on the Marshal of the Family Court of Australia and the Australian Federal Police.  I will make it “as soon as practicable”.

RECORDED   :   NOT TRANSCRIBED

1. Again, by way of briefest ruling, the ICL and the father obviously are saying that this suite of orders should be final, and the mother is saying it should be interim. 

2. I fully understand the mother’s perspective.  She has been extremely unwell again only recently.  She is hoping that her condition will continue to improve dramatically.  She is hoping that her time with M will increase.  And from her perspective, the best way to ensure that her rights to increase her time with M are protected is to ensure that the matter can come back to Court.  However, these very, very carefully worded orders provide every possible mechanism to ensure that M’s wellbeing is to fore with decisions to be made in the near future.

3. There is going to be an ICL remaining in place for 12 months, which is unusual, and a huge benefit to M.  There is going to be a Family Report obtained during that time.  There is going to be supervisors’ reports obtained, as well as an updated psychiatric report about the mother.  All of that will be channelled through the ICL.  There is even a VLA Round Table Dispute Management conference arranged. 

4. On balance, I am satisfied that it is in M’s best interests to have the litigation, that has ruled his little life from babyhood to his kindergarten years, finalised.  The parents will and must start learning ways to resolve differences other than through litigation.  In the unhappy event that they cannot do that, then the Court is available as the last resort.  I am not going to make it the first resort for them, because I think it would be contrary to this little boy’s best interests.

5. So these will be proposed minutes of final orders.  What that means is the one order that I would add will be number 21, which will be that otherwise, all existing orders shall be– that otherwise –all existing applications shall be dismissed and the case removed from the list of cases awaiting finalisation.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 9 February 2011.

Associate: 

Date:  9 February 2011