Watson and Watson

[2007] FamCA 1443

FAMILY COURT OF AUSTRALIA

WATSON & WATSON [2007] FamCA 1443

FAMILY LAW – CHILDREN – Urgent parenting orders made pending adjournment to Senior Registrar’s duty list for interim determination

Family Law Act 1975 (Cth)

APPLICANT: Ms A Watson

RESPONDENT: Mrs L Watson

FILE NUMBER: MLC 12151 of 2007

DATE DELIVERED: 6 December 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 6 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M.L. Mandelert

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

COUNSEL FOR THE RESPONDENT: Ms B. Crocker

SOLICITOR FOR THE RESPONDENT: Hogg & Reid

Orders

1. That the discharge summary of H1 Hospital printed 2 November 2005 be marked exhibit “GM1” and remain on the court file in the sleeve marked for reports. 

2. That the Centrelink Carer Allowance and Carer Payment Assessment Form be marked exhibit “GM2” and remain on the court file in the sleeve marked for reports. 

3. That the medical certificate dated 16 June 2005 from Dr R be marked exhibit “GM3” and remain on the court file in the sleeve marked for reports. 

4. That these proceedings be adjourned to the Senior Registrar on 18 December 2007 at 9:45am. 

5. That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child … born … October 2005 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed with such urgency as will enable the independent children’s lawyer to cause subpoenae to issue to:-

   (a)The Department of Human Services for records relating to the child;

   (b)To the proper officer of H2 Hospital for records relating to the grandmother, Mrs L Watson born … September 1953 and in particular her admission on or about 11 November 2007;

   (c)To proper officer of H2 Hospital for records in relation to the treatment received by the mother, Ms A Watson born … May 1977 since 2003;

6. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

7. That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

8. I grant leave to the parties including the independent children’s lawyer to cause subpoenae to issue and if necessary I abridge times for service of those subpoenae so that the subpoenae are returnable on the morning of 18 December 2007. 

9. That between now and the adjourned date the child reside with the mother as follows:-

   (a)From 9am on Friday 7 December 2007 to 6pm Sunday 9 December 2007;

   (b)From 9am Thursday 13 December 2007 to the conclusion of the interviews with Mr B at his rooms on 14 December 2007;

   (c)From 9am on Sunday 16 December 2007 to 9am on Tuesday 18 December 2007 when the mother is responsible for delivering the child to the Child Minding Centre of this Registry of the Court and to sign him in and the child remain in the Child Minding Centre pending further order of the Court;

   (d)As may otherwise be agreed between the parties in writing. 

10. That until the adjourned date the child reside with the grandmother for all times other than those mentioned in paragraph 9 hereof.

11. That the grandmother and mother affect the changeovers necessary for the child to live with either of them at the outside of the N Medical Centre at …, N unless it is otherwise specified in the preceding orders. 

12. That the parties do all acts and things reasonable necessary to facilitate the preparation of a family report for use in these proceedings:-

    (a)by Mr B, psychologist;

    (b)the cost of such assessment and report be borne equally between the mother and the grandmother and each party forthwith make application for an extension of legal aid funding in those terms;

    (c)the expert’s assessment to include:-

    (i)an evaluation of competing applications for parenting orders;

    (ii)observed interaction between the child … born … October 2005, and each of the parties to the proceeding;

    (iii)an assessment of the capacity of each party to provide for the physical and emotional needs of the child;

    (iv)an assessment of the capacity of each party to cooperate with the other and the attitude of each party to the other party and present and future capacity of the mother and the grandmother to implement an arrangement for equal, substantial or significant time with each of them;

    (v)the impact on the child of spending equal, substantial or significant time with the mother and the grandmother given his tender years and stage of development;

    (vi)what recommendations (if any) he makes for interim live with / spend time with orders to be made on 18 December 2007;

    (vii)any other matter which in the opinion of the expert ought to be drawn to the attention of the court in the report.

13. Such report of Mr B to be released to the parties on or before 17 December 2007 and, thereafter, the solicitor for the independent children’s lawyer cause a copy of the report to be filed with the court under cover of a single page affidavit merely identifying the order pursuant to which the report is prepared. 

14. That the independent children lawyer ensures that any report released by Mr B is sent to the Associate to Senior Registrar promptly. 

15. That the mother provide, and does hereby provide, to Mr B her irrevocable authority for the provision of information to him from her medical or like practitioners including the following:-

    (a)       Dr C, Neuro Oncologist;

    (b)       Mr M, Neuro Surgeon,

    (c)       Dr Y, Radiation Oncologist;

    (d)       Dr A, general practitioner;

    (e)       Mr S, psychologist;

    (f)       Any other treating doctor of whom Mr B may become aware. 

16. That by not later than 12 Noon on Monday 10 December 2007 the solicitors for the mother provide to Mr B in writing the telephone contact details of the practitioners mentioned in the preceding paragraph.

17. That I reserve to the Senior Registrar the issue of whether the maternal grandmother and the mother ought to undergo a psychiatric assessment.

18. That I reserve to the adjourned date consideration by the Court about any parenting course which the maternal grandmother and the mother should attend and I note that as currently advised the parties understand that Relationships Australia may offer a parenting course appropriate to the grandmother and the mother. 

19. That the applicant mother make file and serve any further affidavits upon which she relies by 4pm on Thursday 11 December 2007 inclusive of any response upon which she relies to the affidavit of the grandmother sworn 4 December 2007.

20. That the maternal grandmother file and serve any further affidavit material upon which she seeks to rely on the adjourned date by not later than 4pm on Tuesday 11 December 2007. 

21. That the mother forthwith authorise Dr A to contact the maternal grandmother in the event that between now and 18 December 2007 he forms the view that the mother is not able to adequately care for the child and, for this purpose, the mother provide Dr A with the grandmother’s telephone contact numbers.

22. That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

23. I DIRECT

    that a copy of this Order be faxed to each of the parties and to

    
    

    Dr A. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12151 of 2007

MS A WATSON  

Applicant

And

MRS L WATSON  

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me in the judicial duty list.  It is an urgent application brought by the mother, Ms A Watson, against her own mother for a recovery order in relation to the child, born in October 2005.  The respondent is Mrs L Watson, the maternal grandmother of the child.  

2. The child’s father is not a party to the proceedings; he is not known. 

3. The mother is 30 years old, having been born in May 1977. She lives in the Northern Suburbs of Melbourne. She is employed by a leading bank however is currently on permanent leave until the end of 2009 due to ill-health.  She has an inoperable brain tumour, which she deposes is currently under management, and successfully so.  

4. The respondent is the maternal grandmother.  She is 54 years of age.  She is a teacher by occupation but has not worked full time in that capacity since December 2006 when she took semi-permanent leave in order to care for the mother and the child. 

5. I have adjourned these proceedings to 18 December 2007 before the Senior Registrar. These reasons outline why I have put in place the particular parenting regime between now and the adjourned date and what further evidence should be available to the Senior Registrar on the adjourned date.  The parties agree that the child’s interests should be appropriately represented and that any independent children’s lawyer be heard on the issue of interim parenting orders.  The parties also agree that there should be some assessment by a psychologist or family consultant and, from court, have made arrangements with Mr B for this to be done urgently.  There is significant conflict in the evidence of the mother and the maternal grandmother as to the history of the matter and to a lesser but still significant degree the mother’s medical condition.  These are a few of the matters which, when attended to, should place the Senior Registrar in a better position than I feel I am today to make orders as to where the child should live and what time he should spend with the other party until the court is in a position to determine the matter finally. 

6. The parties and the child have appointments to attend upon Mr B, psychologist, on Friday, 14 December 2007. I am advised that Mr B's report will be published and available to the parties and the independent children's lawyer by Monday, 17 December 2007. I will require that the independent children's lawyer ensure that the Associate to the Senior Registrar has a copy of that report by close of business on Monday, 17 December. 

7. The material before the court today is:

   a)the application of the mother filed 28 November 2007;

   b)the mother's affidavit sworn on 7 November 2007, in support of an earlier application made to the Federal Magistrates Court on 7 November 2007, but since discontinued;

   c)the mother's affidavit sworn 28 November 2007;

   d)the grandmother's response filed 4 December 2007;

   e)the grandmother's affidavit sworn 4 November 2007.

8. Additionally, each party has relied on some exhibits.  Included in those exhibits was an assessment completed by the mother's general medical practitioner in January 2007 in relation to her application for some social security benefit based on her inability to work or care for herself. 

9. Apart from the evidence on affidavit, I have heard some oral evidence by telephone link from the general treating practitioner, Dr A.  I will order that his evidence be transcribed as a matter of urgency so as to be available to the independent children's lawyer and Mr B, and of course the Senior Registrar on the adjourned date. 

10. Bearing in mind that I have to make orders which should last only until 18 December 2007, it is sufficient for me to record that for approximately 15 years of the mother's childhood she battled leukaemia, and when she became pregnant with the child she was diagnosed with a brain tumour, for which she has been treated but it is now considered to be inoperable.  

11. I asked Ms Mandelert specifically whether her client appreciated that she had a limited or shortened life expectancy, and was advised that she was instructed that her client does not have a reduced life expectancy. 

12. The grandmother's affidavit is quite lengthy.  It was filed and sworn only on 4 November 2007 and I accept that the mother has not had a reasonable opportunity to answer the grandmother’s allegations.  I have therefore accepted from Ms Mandelert from the bar table her instructions as to what her client would depose to if required to give evidence in response to some aspects of the grandmother's material.  I take that information into account.  

13. What I have to decide today is where the child lives between now and 18 December 2007.  I have regard to the legislative pathway for interim parenting cases.  The matters which I take into account are the same as those for any final parenting case. However, I do not have the benefit of comprehensive or expert evidence.  Because of the urgency with which this matter has come on for hearing, the fact that such of the evidence as is before the court cannot be tested and because each party, through their lawyer, has indicated that a good part of the evidence upon which she relies is not even before the court, my assessment is curtailed.  

14. The mother says that the maternal grandmother has been of support to her personally and was a stable carer for the child after she was diagnosed with her illness, but of recent times, and particularly in 2007, the relationship has soured so that it is now extremely poor.  The mother contends that the grandmother is alienating the child from her in a psychological sense and withholding the child from her care. 

15. On the other hand, the grandmother alleges that she has been the only stable influence in the child's life, that the mother suffers from mental illness which manifests itself in uncontrolled anger and aggression and threats of self harm.  The maternal grandmother deposes that the mother threatens to kill herself on a weekly basis, has threatened to harm the child or to kill him rather than let the maternal grandmother have care of him, and has indicated as recently as November 2007 to an officer from Centrelink that she would relinquish her care of the child in favour of the maternal grandmother. 

16. Whereas there is conflict in the evidence, it is common ground that the child has been cared for by the maternal grandmother extensively. 

17. I take into account of course the primary consideration, which is to protect the child from physical or emotional harm. 

18. The grandmother's case is that the mother is unable to care for the child, emotionally or physically, that the child has not bonded to the mother nor the mother to him and that this is because the mother has been unable or unwilling to care for the child on a day to day basis. 

19. The maternal grandmother seeks independent evidence as to the mother's mental stability and parenting capacity prior to the mother having any unsupervised time with the child. She says that she is the appropriate supervisor and between now and 18 December 2007 and that the mother can see the child under her supervision two or three times a week in a park.  It may be that that proposal could have been elaborated upon. 

20. The mother's proposal is that the child be returned to her care immediately.  Her secondary position was that there be equal sharing of the time that the child spends in each household between now and the adjourned date.  The fallback position of the mother followed closely upon some comments which I made as a preliminary view, having read the material but not having received submissions by either counsel nor having had the benefit of hearing the evidence of Dr A. 

21. I also take into account the child's right to know and be cared for by his parents, of whom the mother is the only known parent.  This is an important issue in parenting cases but of limited significance today because I am only making orders which will last for the next 12 days of so.  

22. I take into account in a general sense the additional considerations. 

23. The child is only two years old.  I have no evidence of his express views.  In any event he is too young to have any such views taken into account.  The maternal grandmother contends that the child is fearful of the mother and does not relate to the mother as well as he relates to her.  It will be of interest to the court to see how the child's interaction with his maternal grandmother and mother is assessed by Mr B, the psychologist.  Hopefully, Mr B should be able to make some comparative assessment of the degree to which the child is bonded to the mother and to the maternal grandmother.  That is the kind of evidence which, when tested, will place the court in a better position to assess which of the parties is the most appropriate primary care giver for the child until a final hearing when there is sufficient evidence upon which to make an assessment by reference to all of the relevant considerations. 

24. I am satisfied that over the next 12 days or so it is in the child's best interests to have some structured and block time with his mother of one or two nights at a time.  This will represent an alteration to the child’s current routine which appears to be that he is cared for by the maternal grandmother with what are, according to the maternal grandmother, interruptions by the mother which are sometimes violent and inappropriate. 

25. I am satisfied that a structure imposed on the maternal grandmother and the mother by the holding orders which I will make today will be of benefit to the child and permit each to concentrate on him rather than on each other. 

26. I indicated to the parties the sort of regime that I will put in place between now and 18 December 2007. Neither consented to it. However, the parties were able to agree upon a changeover point for the child to spend time or live with each of them.  It is N Medical Centre. That is, coincidentally, the medical centre from which Dr A consults. 

27. Turning to Dr A, I will not repeat his evidence or my discussions with him, save to say that I have built into the orders provision for Dr A to contact the maternal grandmother in the event that he reasonably forms the view that the mother is not able to care for the child between now and 18 December 2007. 

28. I am satisfied that the interim orders which I have pronounced are in the best interests of the child for the next 12 days or so at which time the matter can be

    
    

    re-assessed on more comprehensive and relevant evidence and information than I have before me today. 

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate 

Date:  13 December 2007