ALMOND & HEIDKE
[2012] FMCAfam 1335
•6 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALMOND & HEIDKE | [2012] FMCAfam 1335 |
| FAMILY LAW – Parenting – competing residence applications – child aged 5 years with pervasive developmental delay – insecure attachment style – Father coercive and controlling towards Mother – Mother’s mental illness – parental capacity – therapeutic interventions – child moved from equal time to primary residence with Father. |
| Family Law Act 1975 ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 117(2A) |
| Jones v Dunkel (1959) 101 CLR 298 MRR v GR [2010] HCA 4 |
| Applicant: | MR ALMOND |
| Respondent: | MS HEIDKE |
| File Number: | SYC 6427 of 2009 |
| Judgment of: | Sexton FM |
| Hearing dates: | 18,19 October, 12, 13, 14 & 20 November 2012 |
| Date of Last Submission: | 20 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms D. Hausman |
| Solicitors for the Applicant: | Abrams Turner Whelan Family Lawyers |
| Counsel for the Respondent: | Mr M. Anderson |
| Solicitors for the Respondent: | Tonkin Drysdale Partners |
| Counsel for the Independent Children’s Lawyer | Mr M. Wong |
| Solicitors for the Independent Children’s Lawyer | Legal Aid NSW |
THE COURT ORDERS THAT:
All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the Child [X] born [in] 2007.
[X] live with the Mother as follows:
During preschool/school terms:
(a)In week 1, from after pre-school/school Friday until before pre-school/school Monday, week 1 to commence on Monday 10 December 2012;
(b)In week 2, until [X] is 6 years of age, from after pre-school/school Thursday until midday Saturday, and thereafter from after pre-school/school Thursday until before preschool/school Friday.
During school holiday periods:
(c)For half of the Terms 1, 2 and 3 school holiday periods, being the first half in even numbered years and the second half in odd numbered years on condition that he spend no longer than 7 days at a time with either party unless Order (26) applies.
(d)For three periods of 7 days in the Christmas school holiday period, until he attains 10 years, and thereafter for half the Christmas school holiday period, unless [X] is being taken overseas in accordance with Order (26), and unless otherwise agreed between the parties, precise arrangements to be made by agreement between the parties, but in default of agreement, from the 2nd, 4th and 6th Saturdays of the Holidays, and from the age of 10 years, in the first half in even numbered years, and the second half in odd numbered years, subject to the following:
(i)[X] spend time with the Father from 9.00a.m. Christmas Eve until 5.00p.m. Boxing Day in 2012 and each alternate year thereafter; and
(ii)[X] spend time with the Mother from 9.00a.m. Christmas Eve until 5.00p.m. Boxing Day in 2013 and each alternate year thereafter.
(e)At any other time by agreement between the parties.
[X] live with the Father at all other times.
[X] have telephone communication with each party at any reasonable time.
Special Occasions
Notwithstanding the terms of any other Orders herein, the following apply:
(a)[X] spend time with the Father from midday on Easter Saturday until 6.00p.m. Easter Sunday in 2013 and each alternate year thereafter;
(b)[X] spend time with the Mother from midday on Easter Saturday until 6.00p.m. on Easter Sunday in 2014 and each alternate year thereafter;
(c)[X] spend time with the parent in whose care he is not otherwise in on his birthday each year, and should his birthday fall on a pre-school/school day, then from the conclusion of school for three hours, and should his birthday fall on a non-school day, then for a period of four hours with specific times to be agreed, but failing agreement from 1.00 pm until 5.00 pm;
(d)In the event [X] is not otherwise in the Father’s care on Father’s Day, from 9.00 am until 5.00 pm each Father’s Day;
(e)In the event [X] is not otherwise in the Mother’s care on Mother’s Day, from 9.00 am until 5.00 pm each Mother’s Day;
(f)In the event [X] is not otherwise in the Mother’s care, on the Mother’s birthday each year, then should the Mother’s birthday fall on a school day, from the conclusion of school for three hours, and should the Mother’s birthday fall on a non-school day, for a period of four hours as agreed between the parties, but failing agreement from 1.00 pm until 5.00 pm;
(g)In the event [X] is not otherwise in the Father’s care on the Father’s birthday each year, then should the Father’s birthday fall on a school day, from the conclusion of school for three hours, and should the Father’s birthday fall on a non-school day, for four hours as agreed between the parties, but failing agreement from 1.00 pm until 5.00 pm;
(h)[X] spend time with the Mother on each of the following occasions:
(i)From 4.00 pm on the eve of Passover each year for 24 hours;
(ii)From 4.00 pm on the eve of Rosh Hashanah each year for 24 hours; and
(iii)From 4.00 pm on the eve of Yom Kippur until 8.00 pm on the day of Yom Kippur each year.
Implementation of Orders
For the purpose of implementing these Orders, the following shall apply:
(a)Changeovers occur at the pre-school/school where applicable and otherwise the Mother or her nominee collect [X] from the Father’s residence at the commencement of the time and the Father or his nominee collect [X] from the Mother’s residence at the conclusion of the time.
(b)School holidays be defined as commencing on the day immediately following the conclusion of the school term and concluding on the day immediately before the commencement of the new school term, including pupil free and/or staff development days.
Schooling
[X] continue to attend at the [G] School, unless both parties agree in writing to an alternative school provided that the Father continue to meet the whole of the fees associated with [X]’s attendance, and if this does not occur, [X] shall attend the local public school closest to the residential address of the Father.
The Father provide a sealed copy of these Orders to the Principal of the [G] School.
Restraints
The Mother be restrained from leaving [X] in the sole care of the maternal grandfather or in the sole care of the maternal grandparents jointly, or from permitting the maternal grandfather from giving [X] any counselling or therapy.
Each party be restrained from making critical or derogatory remarks about the other party or the other party’s family in the presence and/or hearing of [X].
Medical treatment and therapy
[X] continue to attend upon his treating Doctors and Therapists, being Dr K (paediatrician), Mr K (Psychotherapist), Ms L (Speech Therapist), Ms M (Occupational Therapist), and [omitted] Medical Centre, and such professionals only be changed with the consent of both parties in writing.
Each party be permitted and encouraged to engage in all therapy and treatment received by [X] from [X]’s Practitioners, subject to the requirements of the individual Practitioner and the Father shall, as soon as reasonably practicable, advise the Mother of all medical appointments.
THE COURT NOTES THAT Orders 12 and 13 do not prevent the Mother from arranging for [X] to attend upon his General Practitioner whilst in the Mother’s care.
In the event [X] requires any emergency medical care whilst in the care of either party, each party be at liberty to ensure [X] receives all such appropriate medical care and shall advise the other party as soon as practicable of all treatment received by [X] in any hospital or by any Medical Practitioner.
The Mother continue to attend upon her Psychologist, Ms G, or such replacement Psychologist as recommended by Ms G or the Mother’s General Practitioner at such frequency and for as long as recommended by the Psychologist.
The Father continue to attend upon his Psychologist, Ms B, or such replacement Psychologist as recommended by Ms B or the Father’s General Practitioner at such frequency and for as long as recommended by the Psychologist.
Each party keep the other advised as to the name of her/his treating Psychologist and as to when the Psychologist advises treatment is no longer required for more than 6 months.
The Mother forthwith consult her General Practitioner for a referral to a psychiatrist and consult a psychiatrist at intervals recommended by the psychiatrist.
The Mother authorise her psychiatrist to speak to the Father if he has significant concerns about the Mother’s mental state and it is noted that Dr P recommends that the Mother also authorises the psychiatrist to speak from time to time to a trusted person nominated by the Mother.
The Mother notify the Independent Children’s Lawyer of the contact details for her psychiatrist and the Independent Children’s Lawyer provide a copy of Dr P’s report, these orders and Reasons for Judgment to the Mother’s psychiatrist.
The Independent Children’s Lawyer forthwith forward a copy of Dr P’s report to Dr K, Mr K, Ms G and Ms B.
Upon implementation of Orders (21) and (22) the Independent Children’s Lawyer’s appointment be discharged.
Overseas Travel
The parties do all things necessary to ensure [X] has a current passport by his 7th birthday and thereafter the parties take all steps necessary to ensure [X] has a current passport at all times.
Each party be restrained from removing [X] from the Commonwealth of Australia except in accordance with these Orders.
When [X] has attained 7 years, each party be at liberty to take [X] on an overseas holiday on the following conditions:
(a)The length of holiday does not exceed 3 weeks until [X] is 10 years of age when the holiday can be extended to 4 consecutive weeks;
(b)The travelling party give the other party at least 6 weeks notice of his/her intention to travel, including full itinerary, address and telephone number details for all places [X] will be staying and a copy of return airline tickets;
(c)The travelling party ensure [X] has skype or telephone communication with the other party at least every 4 days while away;
(d)Neither party remove [X] from Australia on more than one occasion per year, unless otherwise agreed by the other party;
(e)The party holding [X]’s passport ensure it is given to the travelling party forthwith upon notice being given of proposed travel in accordance with this Order;
(f)The travelling party telephone the other party within 2 hours of arrival at the holiday destination to confirm [X]’s safe arrival at the destination.
The Mother hold [X]’s passport until the Father notifies the Mother of any proposal for overseas travel in accordance with Order (26) after which the Father will retain [X]’s passport, and the Mother return [X]’s passport to the Father on return from any overseas holiday she undertakes with [X] in accordance with Order (26).
Pursuant to section 65DA(2) 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 are set out in Annexure A and these particulars are included in these orders.
Independent Children’s Lawyer’s costs and disbursements
The Father pay all outstanding fees owed to Dr P.
The Independent Children’s Lawyer’s application for costs be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Almond & Heidke is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6427 of 2009
| MR ALMOND |
Applicant
And
| MS HEIDKE |
Respondent
REASONS FOR JUDGMENT
Introduction
This a complex case concerning the parties’ only child, [X], aged 5 years. The parties have been unable to resolve [X]’s parenting arrangements.
The parties started living together in late 2005 and separated in or around June/July 2009 when [X] was 2 years of age. They remained living under the same roof until May 2010, when the Mother moved from the parties’ shared premises in [S] and the Father remained in the home and commenced a relationship with his present wife, Ms A. [X] spent approximately equal time with each party from that time.
The Father is aged 41 years, of Armenian heritage and was raised in Lebanon. He speaks a number of languages. He migrated to Australia in 2000, and became an Australian citizen in 2005. He has a Masters degree in [omitted] and is self-employed in a [omitted] business with flexible working hours. The Father married in 2011, and lives with his wife in rental accommodation at [S]. Ms A, aged 38 years, is a [occupation omitted] who works part-time in the Father’s business. An issue arises as to whether Ms A commenced cohabitation with the Father immediately after the Mother moved out in early May 2010 or 3 months later, but I am not satisfied it is necessary to make a finding on this issue.
The Mother is aged 40 years. She was employed in Sydney until approximately 6 months ago when she changed to part-time work nearer her home. She is currently employed as a [omitted], working five days a week from 9.00a.m. until 2.00p.m and Saturday afternoons when [X] is in the Father’s care. The Mother has not re-partnered, and lives in rental accommodation at [omitted] where she has lived since June 2010.
[X] was born [in] 2007. He has a number of special needs. He currently attends pre-school five days a week at the [G] School in [suburb omitted] and is due to start school there in August 2013 (the commencement of the European school year). [X] is exposed to French and English in the Father’s home, and German and English at pre-school. The Father pays the school fees and for [X]’s various therapies and medical interventions. The Mother currently pays $40 a month to the Father by way of a child support assessment.
Each party and the Independent Children’s Lawyer were represented by counsel and the hearing required 6 days.
Short History of Litigation
The Father initially commenced proceedings in this Court by way of an urgent application filed on 25 October 2009. The matter came before me for the first time on 28 October 2009. The Father was given leave to proceed on an ex parte basis because of his concerns about the Mother’s mental state, and interim orders were made providing for [X]’s time with the Mother to be supervised by the Father. An Order was made restraining the Mother from attending [X]’s child care centre, or from removing [X] from the child care centre. The matter was listed before me the following day.
On 29 October 2009, the Mother appeared personally and was assisted by the duty solicitor. Each party gave an undertaking to the Court to remain living at their shared residence pending further Order of the Court, and the interim Orders made on the previous day were discharged. Further interim Orders were made providing for the Father to be responsible for transporting [X] to and from child care, and restraining the Mother from attending at the child care facility except in accordance with Court orders. Orders were made for [X] to spend time with the Mother in the absence of the Father each Thursday and Friday at the child care centre for a period of one to two hours, and each Saturday from 9.00a.m until Sunday at midday when the Mother’s brother-in-law, Mr R, would supervise [X]’s time with the Mother away from the parties’ shared premises. A further order was made for [X] to spend time with the Father in the absence of the Mother for a period each Sunday from midday until 5.00p.m. [X] would otherwise spend time with each parent in the parties’ household in accordance with the usual arrangements. Orders were made restraining each party from denigrating the other in front of [X], and [X]’s name was placed on the airport watch list.
On 19 November 2009, final orders were made by consent providing for the parties to have equal shared parental responsibility. Whilst the parties remained living under the same roof at the [S] premises, Orders were made for [X] to continue attending [omitted] Child Care Centre for a minimum of three days each week. The orders provided for [X] to spend the other two week days with the Mother, and one day each weekend with each parent. Upon the parties living in separate residences, the Orders provided for [X] to spend equal time with each parent on a week about basis with regular visits from the non-resident parent so that [X] would see each parent at least every two days. The Mother consented to authorising her psychologist, Ms G, to discuss and disclose all necessary information relating to the Mother’s psychological treatment to the Father, and the Mother was ordered to continue to attend upon Ms G as she recommended.
The Father commenced the current proceedings by way of an application filed on 27 October 2011. The parties attended a child dispute conference on 21 December 2011, and the family consultant recommended the preparation of a Part 15 Rule 9 expert report. On 22 February 2012, an Independent Children’s Lawyer was appointed.
On 13 July 2012, interim consent Orders were made restraining either party from taking [X] to any medical practitioner, therapist or specialist without the consent of the other party, with the exception of an attendance upon a general practitioner as may be necessary from time to time, a medical emergency, and such other doctor, therapist or specialist as recommended by any of [X]’s treating practitioners following consultation between the parents. Orders were also made by consent for the Mother to consult Dr K, paediatrician and Mr K, [X]’s psychotherapist, and each party was permitted and encouraged to engage in all therapy and treatment offered to [X] from his treating practitioners. The Court noted that the Independent Children’s Lawyer had spoken to Mr K, who said that [X]’s significant developmental delay made his circumstances more difficult and that he was under significant stress, which was exacerbating his condition. The Court noted the need for early hearing dates, and an urgent expert report.
On 24 August 2012, the Court listed the matter for final hearing on 18 and 19 October 2012, and an Order was made appointing Dr P, child and adolescent psychiatrist as the Court expert. On 19 October, the matter was adjourned part-heard until 12 November 2012 for 3 days and at the conclusion of the 3 days the matter was adjourned again until 20 November 2012, for submissions.
Orders sought by each party
The Father seeks Orders that [X] live primarily with him, and spend time with the Mother each alternate weekend from Friday after school/preschool until Monday before school/preschool, and in the alternate week, from Thursday after school/preschool until Friday before school/preschool, as well as during school holidays and on special days[1]. He seeks an order permitting him to travel overseas with [X], including to Lebanon. He seeks orders restraining the Mother from permitting [X] to be left in the sole care of the maternal grandparents jointly, or in the sole care of the maternal grandfather, and also seeks an Order restraining the Mother from permitting the maternal grandfather providing [X] with any counselling or therapy.
[1] Exhibit 25
The Mother seeks Orders that [X] live primarily with her, and spend time with the Father each alternate weekend from Friday after school/preschool until Monday before school/preschool, and in the alternate week, from Thursday after school/preschool until Friday before school/preschool, the converse of the orders sought by the Father[2]. In January 2012, the Mother’s solicitor advised the Court that the Mother wanted an equal time arrangement to continue. The Mother’s solicitor told the Court that [X] was doing well at pre-school and showed no signs of distress in the present arrangement[3]. From August 2012, the Mother no longer supported an equal time arrangement. The Mother opposes [X] travelling overseas to Lebanon, and opposes any restraint on her concerning leaving [X] with the maternal grandparents jointly.
[2] Exhibit 27
[3] Exhibit 9
Current arrangements
As already noted, in November 2009, the Court made final Orders by consent that [X] would spend equal time with each parent on a week about basis, with regular visits from the other parent, in the event the parties were living in separate accommodation. However, when the Mother moved from the parties’ shared residence in May 2010, the parties implemented their own equal time arrangement, which is currently in place. In the first week, [X] spends time with the Mother from after pre-school Monday until before pre-school Wednesday and from after pre-school Friday until before pre-school Monday, and at other times he is with the Father. In the second week, this arrangement is reversed. Changeover generally takes place at [X]’s pre-school, but in the event the pre-school is not open, changeover takes place at each party’s residence.
It is common ground that [X] is exhibiting signs of stress and taking a long time to settle in the current arrangements, which involves many transitions between households.
Expert’s recommendations
Dr P tells the Court that [X] has a pervasive developmental delay[4]. He believes that [X] is at significant risk if he continues in any variation of an equal time arrangement. He recommends that [X] live primarily with the Father because of the Father’s superior capacity to meet [X]’s special needs. He assesses the Mother as lacking inter-personal awareness with “significant functional deficits” because of a mental disorder. While unable to give a definitive diagnosis of the Mother’s condition, Dr P believes that the Mother suffers from a psychotic disorder which is probably a schizoaffective disorder. Given the Mother’s vulnerabilities, and [X]’s neuro-developmental difficulties, Dr P has formed the view that [X]’s relationship with the Mother will be stronger and healthier if [X] spends less time with her, and the Mother has less responsibility for his day to day management and therapies.
[4] Exhibit 2
Dr P highlights particular concerns for [X] if he were to live primarily with the Mother or remain living with her half the time. Included in his concerns as to the Mother’s parental capacity, is his assessment that the Mother minimises the risks her own father poses to [X]. He recommends that [X] not be left in the care of the maternal grandfather and that the maternal grandfather be prohibited from providing any therapy to [X].[5]
[5] Exhibit 2 at paragraph 419
Dr P also recommends that [X] remain at his present school, that the parties both engage with [X]’s treating professionals as well as individual therapy, and that all the health professionals involved with the family are provided with a copy of his report. Dr P makes recommendations about the kind of therapy he believes will most benefit [X] and each party. He recommends that the Mother engages a psychiatrist for the longer term. He says that the health professionals should be able to speak to each other and the Father should be kept informed of the name and contact details of the Mother’s psychiatrist and have authority to make contact if he ever has significant concerns about the Mother’s capacity to care for [X].
Issues
The central question for determination is with whom [X] should live, and how much time [X] should spend with the other party. Other disputed issues include [X]’s overseas travel, school holiday arrangements and contact between [X] and the maternal grandparents.
This case is complicated by the combination of [X]’s developmental delay, the Mother’s mental disorder, the Father’s difficult personality traits and the poor trust relationship between the parties.
Legal principles
These proceedings were commenced in 2011. Amendments made to the Family Law Act 1975 pursuant to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 therefore do not apply. The principles are set out in the Part VII of the Family Law Act 1975 as it provided before the amendments which commenced on 7 June 2012.
Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3). Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
[X]’s Care History
There is a difference in each party’s position as to the extent of the Father’s involvement in [X]’s care prior to separation in mid-2009, though both parties agree that the Mother was not in employment before then, and that the Father was in full time employment.
The Father says that after [X]’s birth in [omitted] 2007 until early 2008, the Mother remained at home full time with [X]. Despite working full time, the Father says that he was very hands on in assisting the Mother with [X]’s care during this period, including spending the majority of weekend time caring for [X], and doing most of the night time feeds. In early 2008, the Father said the Mother was not coping with her caring responsibilities, and so he arranged to work from home one or two days per week. He says that he would work whilst [X] slept, and would otherwise look after [X] on those days. During this period he would primarily look after [X] on Saturdays, and then after the Father had a long bike ride on Sunday morning, [X] would spend the remainder of Sunday with both parents. From the time [X] commenced pre-school 3 days a week in early 2009, the Father says that [X] was with the Mother on Thursdays and Fridays, but would be under his care on Saturday and with both parents on Sunday.
The Mother says that until mid-2009, she was primarily responsible for [X]’s care. She says that the Father worked long days (from 7.00 or 8.00a.m. until 6.00 or 7.00p.m.) and when the Father returned home “[X] was bathed, fed and usually in bed or about to go to bed.”[6] The Mother says that the Father spent two or three nights a week involved in [omitted] activity, and would return home late on those nights. On weekends, she says that the Father enjoyed swimming and cycling, and would only spend time with [X] and the Mother for approximately half a day. The Mother says that after [X] started pre-school in early 2009, whilst the Father collected and delivered [X] from pre-school each day, she would take over [X]’s care once he arrived home.
[6] At paragraph 12 of Mother’s affidavit affirmed 8 October 2012
On 29 June 2009, the Mother was admitted to [omitted] Hospital where she remained an in-patient until 27 July 2009. [X] saw her on only two occasions during that 4 week period, once brought in by the Father, and once by her friend, Ms P. While she was in hospital, [X] commenced five days a week at pre-school, and the parties separated on a final basis, though on the Mother’s discharge from hospital, they remained living under the same roof.
The Mother says from July 2009 until May 2010, the Father “demanded that he make more of the parenting contributions towards [X].”[7] She says that when he arrived home from work he would “demand” to bath [X], or put [X] to bed. She says that the Father “demanded” that he spend one day on the weekend with [X], and she the other.[8]
[7] At paragraph 17 of Mother’s affidavit affirmed 8 October 2012
[8] At paragraph 17 of Mother’s affidavit affirmed 8 October 2012
On 19 November 2009, final parenting Orders were made by consent. The Orders provided for [X] to continue to attend [omitted] Child Care Centre a minimum of three days each week, to spend the other two weekdays with the Mother, and one day each weekend with each party. These arrangements were changed in May 2010, when the Mother moved out of the parties’ shared premises. Around that time, the current arrangements were implemented whereby [X] was in the care of each parent on an equal time basis, with three or four changeovers each week.
In September/October 2010, [X] commenced pre-school at the [G] School five days a week from 8.30a.m. until 3.30p.m. From October 2010, [X] was collected from pre-school by a nanny when in the Father’s care, and the nanny looked after [X] until the Father or his partner returned home from work, no later than 6.00p.m. The Father says that the Mother also occasionally used the same nanny to care for [X]. This arrangement ceased in March 2011.
[X] continues to attend the pre-school at the [G] School five days per week and spends time with each parent in the same equal time arrangement the parties implemented in May 2010.
Mother’s mental health
The Mother has a history of mental illness and there is some history of mental illness in her extended family. Her maternal grandmother committed suicide, her mother and her sister have suffered depression at different times. Her father is described by Dr P as having an “idiosyncratic” belief system[9]. The Mother has had a difficult relationship with her parents since childhood, but says their relationship is currently positive.
[9] Exhibit 2 at paragraph 370
The Mother’s symptoms over a number of years are variously described in her medical records as “significant mood swings”; “irritability”; “depressed feelings”; “anger”; “personality disturbance”; “emotional regulation difficulty”; “anxiety”; “panic attacks”; and “depression.”[10] She has been taking Avanza for the past 3 years, an anti-depressant medication. The Mother has told health professionals at different times that her difficulties have been caused by problems in her relationships with her parents as well as her relationship with the Father.
[10] Exhibit 13
Dr P believes it most likely that the Mother has a schizoaffective disorder for reasons shortly explained. However, a number of different psychiatric labels have been recorded from time to time in the various hospital and medical notes tendered in evidence, including depression, anxiety, bipolar affective disorder[11], histrionic personality traits[12]; complex post-traumatic stress disorder[13]; borderline personality disorder[14]. The Mother’s former General Practitioner, Dr T, refers to a past diagnosis of bi-polar disorder (a diagnosis denied by the Mother) well before the Mother was in a relationship with the Father, but the psychiatrist, Dr M, who assessed the Mother in March 2009, did not accept the bi-polar diagnosis[15].
[11] Exhibit 13 and Exhibit 17 – History given by Mother at [omitted] Hospital on 22 June 2009
[12] Exhibit 13 – Letter from Dr M to Dr T 19 March 2009
[13] Exhibit 13 – Letter from Lawson Clinic to Dr T 11 November 2009
[14] Exhibit 19 – [omitted] pre admission assessment
[15] Exhibit 13 – Letter from Dr M to Dr T 19 March 2009
Whatever the label which most accurately describes the Mother’s condition, Dr P says[16] that the Mother has “an ongoing risk of decompensation and an ongoing likelihood of fluctuating levels of functioning.”
[16] At page 59 of the transcript of proceedings on 18 October 2012
As a teenager, the Mother was prescribed an anti-psychotic medication known as Stelazine, but no independent medical evidence is adduced from that time. The maternal grandfather told Dr P that he took the Mother off Stelazine, but that her difficulties continued for 5 years. He says he counselled the Mother during her adolescence using a process known to him as Emotional Release Therapy. The Mother took an overdose of drugs during her later teenage years and as a result, she spent a night in hospital. The Mother has been admitted to hospital on a number of further occasions with suicidal ideation, once in her early 30’s before she began her relationship with the Father, twice in a 2 week period in June 2009 and once on 20 October 2009 when the Mother presented to [omitted] “depressed, suicidal, [with] plans to jump off the Gap.”[17] On 3 May 2010, the Mother called Lifeline, was taken to hospital by ambulance, but says that although she was having “bad thoughts”, she did not threaten suicide on that occasion.
[17] Exhibit 16
The Father told Dr P that the Mother has threatened to kill herself at other times saying “I’m going to jump off the hill today”[18] and “[X], this is the last time you see your mummy.”[19] While conceding that she did feel suicidal at times, the Mother denies ever using the words alleged by the Father. The Mother told Dr P that for a time she used alcohol as a “coping mechanism”[20] but that was short-lived. However, a letter from the [omitted] Clinic to Dr T of November 2009 refers to the Mother’s “consumption of one bottle of red wine per night over 12 months until recently.”[21] The Father’s allegations that the Mother used to drink wine to excess when [X] was alone in her care, are denied by the Mother, but I find they are likely truthful.
[18] At paragraph 158 of Exhibit 2
[19] Ibid
[20] At paragraph 74 of Exhibit 2
[21] Exhibit 13
The Mother has not presented with symptoms of suicidal ideation since May 2010. Ms G, the Mother’s psychologist, reports to Dr P that the Mother’s mental state has been consistent over time[22]. However, the Mother acknowledges that since living independently, she has been anxious at times and there are other indicators of the Mother struggling with her caring responsibilities. For example, staff at [X]’s pre-school and [X]’s speech therapist have reported the Mother failing, at times, to appropriately manage aspects of [X]’s care, and the Father says he started these proceedings because of his concerns the Mother was not coping with the care of [X] at times during 2011.
[22] At paragraph 300 of Exhibit 2
Dr P was cross-examined extensively by the Mother’s counsel as to the Mother’s mental health condition. Dr P gives his opinion that the Mother has suffered symptoms of anxiety and depression, and has also experienced a chronic psychotic illness. Because her interpersonal dysfunction is reported from the time she was an adolescent, and because of descriptions given by other professionals of her odd behaviours and lack of personal awareness, Dr P formed the view that the Mother suffers from a chronic psychotic disorder, most likely a schizoaffective disorder.[23] Dr P describes the features of the condition shown in the Mother as some disorganisation of speech and behaviour, which is not accounted for by other things such as her intellect or emotions, some delusional thinking and disturbed mood.[24] He says she was “sort of silly” at times during interview[25], (he notes that the [omitted] Hospital called her “child-like”)[26], her tonicity not matching the content of the discussion and showing a disruption in cognitive integration, consistent with a psychotic disorder. He believes this contributes to others being “nice to her and being a bit condescending.”[27] He describes her as having “mild thought disorder at times, with some tangentiality” giving this example of what the Mother told him[28]:
I write a list and hand it over to my higher power, who is my god, my self, my soul…I’m Jewish, a proud Jewess”…
[23] At page 5 of the transcript of proceedings on 18 October 2012
[24] At pages 6 to 7 of the transcript of proceedings on 18 October 2012
[25] At page 50 line 18 of the transcript of proceedings on 18 October 2012
[26] Ibid Lines 16 to 17
[27] Ibid Line 27
[28] At paragraph 22 of Exhibit 2
Dr P says there is an alternative possibility[29] that the Mother:
…has a diagnosis of a chronic fluctuating anxiety and depressive disorder on a background of developmental trauma related to emotional abuse by her father during adolescence, then perpetuated and exacerbated by the trauma associated with derogatory and dismissive treatment from the Father during the parents’ relationship.
[29] At paragraph 378 of Exhibit 2
Dr P says that the Mother has also shown dependent personality traits. In summary, however, Dr P believes his diagnosis of a psychotic illness the most likely[30]. He says that the Mother’s lack of interpersonal awareness is much more typical of a psychotic disorder than just anxiety and depression[31]. When challenged by the Mother’s counsel on his diagnosis of a psychotic disorder, given other mental health professionals had not labelled her condition in this way, Dr P says that he formed the view that the Mother had not been open and transparent about her symptoms with her treating professionals over time, because of lack of insight and not wishing to appear vulnerable, which is likely to have contributed to the failure to make that diagnosis in the past[32]. He says that although the Mother does not accept the extent of her deficits, she does have some insight into her dysfunction and has learned to cover it up. Dr P says the Mother’s problems are more significant because [X] has special needs.
[30] At page 5 line 35 of the transcript of proceedings on 18 October 2012
[31] At page 5 line 45 of the transcript of proceedings on 18 October 2012
[32] At page 30 line 13 of the transcript of proceedings on 18 October 2012
As a result of her condition, Dr P finds the Mother to have significant functional deficits as a parent, in that she has not always addressed [X]’s physical needs (for example, slow to nappy change, allowing rashes to develop, unable to manage his soiling at school) or emotional needs, because of lack of attunement. Dr P also believes that the Mother has had difficulties with the day to day maintenance of the home[33]. In cross-examination, Dr P says that schizoaffective disorder is a lifelong disorder but treatment can reduce or minimise its impact, particularly in relation to mood symptoms and disorganised thinking[34]. Presently he says the Mother’s symptoms are at the lower end of the symptom spectrum, but she is likely to have ongoing deficits which will vary in their impact from time to time. Dr P recommends that the Court mandate her ongoing connection with her psychologist, Ms G, whom the Mother trusts and understands her condition, and also that the Mother involve a psychiatrist in her treatment whom the Father could contact if he were ever concerned about her capacity to look after [X]. Dr P believed it necessary for the Mother to have prompt access to a trusted therapist whenever she needs assistance. This, he says, would benefit [X].
[33] At page 51 line 11 of the transcript of proceedings on 18 October 2012
[34] At page 8 lines 40 to 43 of the transcript of proceedings on 18 October 2012
Dr P assesses the risk of suicide in the Mother as “low” and mitigated by her ongoing treatment[35] and supports. In particular, he notes that the Mother benefits from her involvement in a support group “[A]” which she attends weekly. Dr P believes her decision a few months ago to change her employment to part-time in her local area has also helped her.
[35] Exhibit 2 at paragraph 400
I accept Dr P’s assessment of the Mother’s mental state and consequent functional deficits.
Father’s mental health
The Father is under the care of Ms B, psychologist, whom he first consulted after separation from his first wife. Ms B told Dr P that the Father “has a tendency to want control over himself and his environment” which comes from within his family of origin[36]. In cross-examination, the Father concedes he has been too controlling in his relationship with the Mother, but that this was caused partly by the Mother always wanting to “check everything” with him. Ms B said the Father was growing in his awareness of his “controlling behaviour” and trying to manage it in his new relationship. In Ms B’s view, the Father was overwhelmed by the Mother’s needs during their relationship which played into his tendency to be over-controlling[37]. Ms G, the Mother’s psychologist who met the parties when they were still in their relationship, told Dr P that the Father had a strong personality and definite views[38]. She did not find the Father open to compromise.
[36] Exhibit 2 at paragraph 319
[37] Exhibit 2 at paragraph 321
[38] Exhibit 2 at paragraph 294
In Dr P’s view, the Father does not suffer from a mental illness, but has obsessional and narcissistic characteristics in his personality, his obsessional traits being dominant. He does not believe the Father has a narcissistic or other personality disorder. However, in his opinion the Father can be “idealistic, controlling and derogatory both to himself and others”, the extent of this vulnerability reduced by his ability to take frank advice[39]. Dr P found that at times during interview, the Father showed disrespect of the Mother from a position of superiority[40]. In his opinion, the Father’s controlling and coercive behaviour has impacted on the functioning of the Mother as a parent, which the Father does not fully appreciate[41]. Dr P does however agree with Ms B, that the Father’s concerns about the Mother’s ability to parent [X] over a long period, have partly contributed to his controlling behaviour, and in that regard have been legitimate.
[39] Exhibit 2 at paragraph 381
[40] Exhibit 2 at paragraph 131
[41] At page 53 of the transcript of proceedings on 18 October 2012
I accept Dr P’s assessment of the Father’s mental state and vulnerabilities.
[X]’s development
[X] has been under the care of a paediatrician since early 2008 when he was referred to physiotherapy and occupational therapy at 9 months of age. He had delayed milestones. In 2010, he received treatment for a tongue-tie and it was also recommended that he see a child psychologist. [X] has been treated by a number of health professionals since then. He is currently under the care of:
·Ms L, speech pathologist;
·Dr K, paediatrician who specialises in treating children with developmental, behavioural and trauma issues;
·Ms M, occupational therapist;
·Mr K, psychotherapist;
·Urologist (unnamed) at [omitted] Hospital;
·Dr N, ophthalmologist;
·Dr R, optometrist;
·Audiologist at [omitted];
·Dr V, General Practitioner.
[X] has been attending pre-school at the [G] School since September/October 2010. The notes from the pre-school record [X] displaying significant behavioural problems at pre-school throughout 2011. He threw toys and other items, hit, pushed and hurt other children, threw chairs, deliberately clogged toilets with toilet paper. He had constant toileting accidents including spreading his faeces “all over pre-school – from reading corner to home corner – poo on carpets and all over lino floor.”[42] The notes record [X] smiling when confronted.
[42] Exhibit 8
A further report from the pre-school dated April 2012 says that while there has been improvement since he started, “he is still substantially behind in many areas and not yet where he ought to be developmentally for a child of his age” including social, cognitive, language, gross motor and emotional development[43]. In April 2012, Dr K, paediatrician, reports [X] displaying tics, including eye blinking, self-biting, licking of lips and a recurrent dry cough[44]. Dr K emphasises the importance of consistency of care and therapy provided by both parents, and that both parents should continue to engage with his therapy to help maximise his potential.”[45] Dr K recommends a “stable, consistent home environment”, because he says inconsistency and instability “can have an impact on his emotional well-being and his developmental progress.”[46]
[43] Annexure A to Mother’s affidavit affirmed on 3 May 2012
[44] Annexure C to Mother’s affidavit affirmed on 3 May 2012
[45] Annexure C to Mother’s affidavit affirmed on 3 May 2012
[46] Ibid
At interview, Dr P observed [X]’s loud voice, atypical tone, pacing of speech and prosody. He observed occasional eye-blinking. He found [X]’s responses literal[47]. Dr P assesses [X] to have a pervasive developmental disorder[48], almost certainly from birth[49], exacerbated by adverse life experience. He lists [X]’s disabilities as delay in adaptive functioning, speech disorder, motor difficulties including motor tics and fine motor function, difficulties with emotional regulation, behaviour and socialisation, and maybe some attentional difficulties and cognitive impairment. In Dr P’s view, [X] also has “some behavioural disturbance related to an anxious-ambivalent attachment style.”[50] As a result, [X] needs strong positive developmental input so he can benefit from the professional assistance he will need. He agrees with Dr K that [X] needs a stable and consistent home environment and “strength, predictability, attunement and reflective functioning in his parenting system.”[51]
[47] Exhibit 2 at paragraph 221
[48] Exhibit 2 at paragraph 389
[49] At page 51 lines 29 to 33 of the transcript of proceedings on 18 October 2012
[50] Exhibit 2 at paragraph 392
[51] Exhibit 2 at paragraph 391
Dr P says the degree of [X]’s developmental impairment will become clearer over time, but he will have special needs through childhood, adolescence and adulthood. Dr P explains that the secondary disabilities which arise from the disorder are the neuro-developmental problems including behavioural problems, speech and relationship problems for which [X] needs intensive intervention in his early years. In his opinion, [X]’s behavioural problems have been exacerbated by an anxious/ambivalent attachment to the Mother, who is vulnerable as a result of her mental illness. [X] has learned to “up the signal”[52] to get his needs met by the Mother. However, Dr P says that the environmental component of [X]’s early developmental delay cannot be fully ascribed to the Mother’s vulnerabilities because the Father-child relationship was “dangerous and confusing” for [X] and was “ineffective in terms of developmental guidance.”[53] As he gets older,
Dr P says [X]’s behavioural difficulties are likely to become more challenging, while the physical challenges are likely to diminish.
[52] At page 25 line 19 of the transcript of proceedings on 18 October 2012
[53] Exhibit 2 at paragraph 349
Dr P summarises [X]’s specific needs for “good parenting” as[54]:
· Extra developmental assistance and extra effort so he benefits from the assistance;
· Strength, predictability, attunement and reflective functioning in the parenting system;
· His developmental guides to have good micro-skills in day to day life in terms of attunement and guidance, including the ability to negotiate delicately on his behalf in the community.
[54] Exhibit 2 at paragraphs 391 to 393
I accept Dr P’s assessment of [X]’s special difficulties.
PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both of the child’s parents
In Dr P’s view, [X] wants and needs each party meaningfully in his life.
On each party’s proposal, [X] will spend substantial time with the other party including weekday, weekend and holiday time. I am therefore satisfied that whatever orders the Court makes, [X] will continue to benefit from a meaningful relationship with each party.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
“Neglect” is not defined in the Family Law Act and therefore must be given its ordinary meaning. Dr P believes that [X] was subjected to the danger of neglect at times with the Mother when the Mother was “preoccupied or slowed in her thinking and behaviour”.[55] I accept his opinion and have regard to it.
[55] Exhibit 2 at paragraph 360
“Abuse” was, at the relevant time, narrowly defined in section 4 of the Family Law Act as sexual abuse or an assault of a child which is an offence under the law. It does not apply in this case.
“Family violence” was defined at section 4 of the Act, (at the relevant time) as conduct, whether actual or threatened that causes the person to reasonably fear for, or to be apprehensive about, his or her personal wellbeing or safety.
It is acknowledged by both parties that their relationship was volatile, with regular heated and damaging verbal exchanges, and that [X] is likely to have been harmed from exposure to their behaviour. The Father denies, however, as alleged by the Mother, that he was also physically violent on occasions.
The Father told Dr P that the Mother used to say “you’re a fucking cunt” or “I hope you die on the freeway”.[56] He alleges the Mother kicked him. The Mother concedes using derogatory language at times, but denies kicking him. I find it noteworthy that in May 2008, Dr S, Clinical Psychologist assesses the Mother as “being highly sensitive to the apparent criticism or rejection of others and may respond at times in a volatile manner.”[57] I find it likely that the Mother did lash out at the Father on occasions.
[56] Exhibit 2 at paragraph 156
[57] Exhibit 13 – Letter from Dr S to Dr T dated 27 May 2008
The Mother told Dr P[58] that the Father was repeatedly highly critical and insulting of her, worse if under the influence of alcohol, saying such things as “we don’t need you” “you’re fucking useless” “go kill yourself” and “go take all your tablets” “you’re a hopeless mother.”[59] The Mother found the Father intimidating, coercive and controlling, insisting that she report details of what she had done with [X] at the end of each day and controlling what monies she could spend. He used cruel and undermining terms to describe her such as “fucking idiot”; “stupid retard” and “fat and ugly”, often in front of [X]. He used to put his face close to hers and “hiss” at her so spit hit her face. He undermined her to doctors, care workers and [X]’s teacher at pre-school by telling them she was “not competent”; that she was “anxious” and that she had “bi-polar disorder”. The Mother contends that the Father paid little or no regard to her opinions, particularly in relation to [X]. The Father decided, against her wishes, to send [X] to [omitted] pre-school at 22 months, and to send him to the [G] School at 2.5 years. The Mother felt she had no choice but to agree with him.
[58] Exhibit 2 at paragraph 36
[59] Exhibit 2 at paragraphs 36 and 43
Mr R, the Mother’s sister, deposes[60] to the Father’s derogatory remarks to the Mother on two occasions, using such terms as “you are so stupid”; “you are an idiot” and “I hope [X] does not turn out like you”. The maternal grandparents told Dr P they experienced the Father as “a control freak.”[61]
[60] Affidavit of Mr R sworn on 4 October 2012
[61] Exhibit 2 at paragraph 95
The Mother alleges the Father was also physically violent towards her. In particular she claims:
a)In January 2006, he held a plate of food “up in my face” and threw the whole contents on the floor, screaming “this is rubbish [Ms Heidke], this food is fucking horrible. How can you serve this rubbish food to me?”[62]
b)In September 2007, he called her “a useless retard”; and a “fucking idiot”, grabbed her arm and manhandled her out of a Coles supermarket.[63]
c)In 2007, he pushed her away when accusing her of bathing [X] incorrectly.[64]
d)In December 2007, he “shook her harshly by the hand” showing her how to re-clean the house “his way”.[65]
e)On 2 May 2010, he directed her to shut herself in her room and stay there until he said so, even if she wanted to use the toilet. She urinated in a jewellery box in her room. She phoned her friend Ms P. The Father was yelling from the other side of the door “why don’t you go and kill yourself; who fucking needs you; you’re a hopeless mother; I will find a better mother than you; I’m already dating the perfect lady.” [X] was screaming. At times during the incident, she had the door locked from the inside. At one point, the Father burst into the room with [X] in his arms, screaming at the Mother. He pushed against her so she fell against the wardrobe and she hurt her arm. He then left the room with the words “stupid bitch”. [66]
[62] At paragraph 19 of Mother’s affidavit affirmed on 8 October 2012
[63] At paragraph 36 of Mother’s affidavit affirmed on 8 October 2012
[64] At paragraph 34 of Mother’s affidavit affirmed on 8 October 2012
[65] At paragraph 41 of Mother’s affidavit affirmed on 8 October 2012
[66] At paragraphs 54 to 57 of Mother’s affidavit affirmed on 8 October 2012
Ms P[67], a social worker and close friend to the Mother, has known the parties since January 2007 and continues to have regular contact with the Mother. Her unchallenged evidence is that the Mother reported to her regular instances of the Father abusing her, physically, psychologically and financially. She recalls at a social occasion in May 2007 the Father constantly correcting and criticising the Mother in front of her family over the way the Mother was preparing the lunch. Ms P recalls the Father “micro-managing” the Mother’s care of [X] in her presence, constantly criticising her and giving her directions.
[67] Affidavit of Ms P sworn on 4 October 2012
Ms P recalls the telephone call from the Mother on 2 May 2010[68]. The Mother was crying as she told her the Father had shut her in her room and ordered her not to come out. Ms P could hear the Father yelling in the background. The Mother told her the Father had told her he wanted her dead, that she should kill herself, that he and [X] would be better off without her and that he had [X] in his arms and was trying to come in. Ms P then heard a “dull thud and yelling by [Mr Almond] that was much clearer.”[69] Early the following morning, the Mother rang Ms P to say the Father and [X] had left the house, she had rung Lifeline and the Father had pushed her against the wardrobe after she’d hung up the night before. Ms P attended [omitted] Hospital with the Mother, and reported domestic violence between the parties to the nurses. The Mother had a large bruise on her right upper arm which she told her had been caused by the fall against the wardrobe the night before. The Mother told Ms P she did not tell the nurses about the assault for fear of repercussions from the Father. Ms P’s evidence on these issues was not challenged and I accept the truth of what she said.
[68] At paragraph 20 of the affidavit of Ms P sworn on 4 October 2012
[69] At paragraph 21 of the affidavit of Ms P sworn on 4 October 2012
The Mother was cross-examined extensively by the Father’s counsel in relation to her allegations of physical violence by the Father. Counsel questioned the Mother as to why she had not reported the alleged violence until the Father commenced the current proceedings, despite repeated interactions with health professionals, a meeting with a family consultant in 2009 and other opportunities to do so. Counsel highlighted inconsistencies between the Mother’s affidavit and oral evidence as to the events of 2 May 2010. Counsel submits that the Court should find the Father was never physically violent.
In cross-examination, the Father says he was “mean and verbally violent to the Mother”, “harsh and domineering”, at times in front of [X], but never pushed or hit the Mother. The Father explains the bruise on the Mother’s arm as possibly caused by the Mother falling off her bike. He acknowledges that he used to tell the Mother to “fuck off” and used to swear at her in front of [X], but denies that he used the cruel terms alleged by the Mother. The Father says that in hindsight he understands that his behaviour was wrong and particularly damaging to the Mother in her vulnerable mental state.
The Father acknowledges that he was in an abusive relationship with his first wife, [name omitted]. He says he was probably “harsh and domineering” and verbally abusive towards her, but again denies physical violence. He says [name omitted] was regularly violent towards him and was a pethidine addict. In June 2005, the Father and his first wife obtained mutual Apprehended Violence Orders against each other for a period of 6 months.[70]
[70] Exhibit 12
Dr P formed the view that the Father was more negative and critical towards the Mother than he was prepared to acknowledge.[71] In his view, the Father’s behaviour has had “features typical of family violence.”[72] He says[73]:
My impression is that the father’s sort of aggression in relationships was more sort of controlled and opinionated, whereas the mother’s was more an emotional storm.
Dr P believes the Father’s conduct towards the Mother cannot be justified by the Mother’s illness but can be explained by the fact that the Mother had a marked functional deficit and was not addressing her problems.
[71] At page 18 lines 38 to 39 of the transcript of proceedings on 18 October 2012
[72] Exhibit 2 at paragraph 382
[73] At page 41 lines 43 to 45 of the transcript of proceedings on 18 October 2012
I am satisfied that the Father belittled and undermined the Mother during their relationship and has continued to undermine and criticise her at times since separation. I find the Father has made limited effort to understand the Mother’s mental vulnerabilities or to help her manage them, and almost certainly caused an exacerbation of the Mother’s mental disorder. I prefer the Mother’s evidence as to the language the Father used against her, and I prefer the Mother’s evidence as to the Father’s aggression towards her which, on rare occasions, I am satisfied involved some unwanted physical contact. I find the Father has understated the extent of his aggressive behaviour. I agree with the Father’s counsel that there are inconsistencies in the evidence as to the detail of what occurred on the night of 2 May 2010, and I agree with counsel that this is not a case in which physical violence is a significant feature of the relationship between the parties. However, in broad terms, I am satisfied that the Father did insist the Mother stay in her room that evening, did shout at her through the door as she alleges, in front of [X], did cause [X] and the Mother fear and distress and did make contact with the Mother in such a way that she fell against something in her room, hurting her arm. I am satisfied the Mother’s call for help to Lifeline the following morning was a direct result of the Father’s conduct the night before. I agree with counsel for the Independent Children’s Lawyer that the Father’s conduct towards the Mother is a troubling feature of this case. I am also satisfied that [X] has been exposed to family violence which has caused him psychological harm. Dr P says[74] that:
[[X]’s] well being will have been negatively affected by the Father’s verbal aggression towards the Mother, both directly in terms of his “yelling” and indirectly in terms of the effect on the Mother. So, the Father will at times have been experienced by the child as dangerous.
[74] Exhibit 2 at paragraph 347
Dr P says that if the Court finds that the Father behaved similarly in other relationships both past and present, there is concern in terms of parenting capacity, because of the risk of him repeating the pattern with his present wife and modelling such behaviours to [X]. Dr P believes, however, that the comments of Mr K and Ms B show the Father has personality flexibility and a willingness to take criticism, which mitigates against this outcome.[75] I am encouraged that the Father acknowledges that his past behaviour was wrong, and is now married to a woman with whom he can talk through differences calmly, and has not complained of any similar behaviour. I was impressed by the Father’s wife and find it unlikely she would tolerate any form of abusive conduct from the Father either towards her, or towards [X]. However, given the seriousness of the Father’s conduct in the past, it is imperative, and in the best interests of [X], that he continue to consult his psychologist and continue to accept guidance from Mr K. The Father has consented to an order to this effect.
[75] Exhibit 2 at paragraph 384
I give substantial weight to my findings under this factor.
ADDITIONAL CONSIDERATIONS
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the child’s views.
[X] told Dr P that he wanted to live with both his parents, even though he seemed to expect that he would be living with the Father. Although at times in the past his school notes record some resistance to going with the Mother, as opposed to the Father, staff now observe that [X] is happy to go with both his parents. Dr P believes [X]’s stated wish to be with both his parents is his genuine wish, and I accept this evidence.
However, given [X]’s young age and developmental difficulties, I do not give this finding significant weight.
The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
In Dr P’s assessment, [X]’s relationship with both parties was significantly disrupted during his early years because of his developmental disorder, the relational vulnerabilities of each parent, the parties’ relational difficulties and the family’s relative isolation from outside supports[76]. I accept his view that there has been marked improvement since the parties’ separation.
[76] Exhibit 2 at paragraph 343
Dr P believes that [X]’s relationship with the Mother is currently positive but there is a risk that if she experienced increasing difficulty in managing his behaviour, the relationship would deteriorate. As already noted, Dr P assesses [X]’s attachment relationship with the Mother to have an ambivalent/anxious style because the Mother has not been consistently available to him, either physically or emotionally, as a result of her mental disorder and the Father’s undermining and hyper-critical conduct towards her. Dr P describes the provocative attention-seeking behaviour seen in [X] as “a common element of an anxious-ambivalent insecure attachment strategy.”[77] Consistently with his assessment, Ms A told Dr P[78] that she has observed [X] trying to attract the Mother’s attention to go the toilet or get something to eat, but the Mother talking over him, or dismissing him. I accept Dr P’s opinion that [X] still experiences insecurity in the Mother’s care. He says that the Mother’s vulnerability “exacerbates the anxious-ambivalent attachment pattern, which manifests in persistent child emotional and behavioural issues, which further test the adult.”[79] He also says[80] that the Mother’s:
….capacity to contain and guide [[X]] remains variable and vulnerable [while] [X]’s capacity to.... disrupt that guidance is increased by his developmental difficulties and the….anxious-ambivalent attachment strategy.
[77] Exhibit 2 at paragraph 364
[78] Exhibit 2 at paragraph 206
[79] Exhibit 2 at paragraph 366
[80] Exhibit 2 at paragraph 362
Dr P observes[81]:
…some role reversal/parentification in the child-mother relationship, in that the child worries about the mother, and knows that she needs him.
[81] Exhibit 2 at paragraph 368
He says that [X] values the relationship with the Mother and wants and needs the positive connection they have managed to maintain through “their troubled history together.”[82] In Dr P’s view, which I accept, the Mother is a significant figure in [X]’s life. They enjoy a warm, relaxed interaction and their relationship must be supported for [X]’s well being.
[82] Exhibit 2 at paragraph 368
Dr P finds a positive and secure attachment relationship between [X] and the Father, “enriched and augmented” by [X]’s positive and secure relationship with the Father’s wife.[83] In contrast to [X]’s earlier experience of the Father as “dangerous”, [X] now experiences the Father as “available, attuned and non-dangerous”.[84] Dr P says[85]:
The child described the father to me as strong, and related to the father in an engaged, confident but respectful way which suggested to me that he was experiencing the father as predicably attuned to his needs.
[83] Exhibit 2 at paragraph 345
[84] Exhibit 2 at paragraph 350
[85] Exhibit 2 at paragraph 351
Dr P observes a comfortable secure relationship between [X] and Ms A (“[nickname omitted]” to [X]) and is complimentary of Ms A’s sensitivity and attunement to [X]’s needs.
I find it likely that [X] is close to his maternal grandparents and his maternal aunt whom he sees regularly. Dr P observed a warmth and comfortable familiarity between [X] and the maternal grandparents[86] who he says strengthen the mother/child relationship.
[86] Exhibit 2 at paragraph 369
I take these findings into account.
The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
Dr P stresses the importance to [X] of his parents having civilised respectful communication at all times, unlike their communication in the relationship.
Although there are recent examples of inappropriate comments to the Mother by the Father and Ms A, I am satisfied some improvement has been achieved in each party’s support for [X]’s relationship with the other party, particularly in recent months. The Mother believes there has been some improvement, and the Father now acknowledges that undermining, patronising or criticising the Mother, as has been the pattern, does not help [X]. I am critical of the Father’s insensitivity to the Mother’s position when [X] was in hospital recently, when he wanted Ms A to stay overnight with [X][87]. I am critical of Ms A reprimanding the Mother in front of hospital staff, despite her concerns for [X]. I accept the Mother’s evidence that on one occasion, when she had been living at the hospital with a sick child for 7 days, the Father and Ms A were “being horrible”. However, I accept Ms A’s evidence that she recognises the need for her to relate comfortably to the Mother and that generally she was able to support the Mother when they were together at the Children’s Hospital.
[87] Exhibit 14
I agree with the Independent Children’s Lawyer’s counsel that the ability and willingness of the Father to support [X]’s relationship with the Mother is a significant issue in this case. As already noted, I find that the Father was insensitive to the Mother’s vulnerabilities in the relationship and undermined her role as [X]’s Mother in a controlling and thoughtless way. I am critical of the Father for removing [X] from the Mother’s care during the relationship, without notice or explanation, so [X] was kept away from her for up to 24 hours. I am critical of the Father for taking [X] to see the Mother only once, when [X] was only 2 years of age, and the Mother was hospitalised for 4 weeks. At best, I find the Father’s behaviour was thoughtless and selfish.
Dr P says the Father may still relate to the Mother in a coercive and disrespectful way which will negatively impact her well being and parenting capacity. He says that the Mother would benefit if the Court set appropriate boundaries on the Father in this regard, to protect the Mother’s integrity[88].
[88] Exhibit 2 at paragraph 386
While not confident about the Father’s capacity to change the pattern of his conduct towards the Mother, I find some basis for cautious optimism. The Father told Dr P[89] that it would not be right for [X] not to see the Mother because he would feel abandoned and think the Father had taken his Mother away from him. The Father told the Court that he accepts that caring for [X] as a single Mother could be stressful, given [X]’s behavioural problems. Ms A says she understands the importance of getting on with the Mother and of [X] having a positive view of the Mother. She has put photos of the Mother in [X]’s room at their home. She acknowledges she has made mistakes, and on occasions been unnecessarily provocative and critical, and says she will endeavour to avoid such mistakes in the future.
[89] Exhibit 2 at paragraph 192
I am also encouraged by Dr P’s view that the Father will facilitate and even encourage [X]’s relationship with the Mother if he is reassured that [X]’s needs are being met when with her. Dr P thinks the Father is less likely to be intrusive in relation to the Mother’s parenting and less likely to be critical or coercive towards the Mother if he has the primary parenting role.[90]
[90] At page 22 lines 21 to 25 of the transcript of proceedings on 18 October 2012
I give some weight to my findings here.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the children), with whom he or she has been living
[X] has never been apart from either his Mother or his Father for longer than a few days. Prior to the parties’ separation, each party was actively involved in his day to day care. Since separation, he has spent approximately equal time with each party. [X] is used to spending substantial time with each party. I agree with Dr P that [X] would “grieve the loss of connection with either parent”[91] if kept away from either of them for too long.
[91] Exhibit 2 at paragraph 403
I accept that a reduction in time with either party will require some adjustment for [X] initially. However, given I accept the evidence of Dr K, Mr K and Dr P that such a change will mean fewer changeovers and more stability in [X]’s day to day life, I am satisfied that the effect of the change, after a relatively short period of adjustment, will be positive.
The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
This factor does not apply.
The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The Father has been concerned about the Mother’s capacity to parent [X] since he was a baby. He claims[92], and I accept, that the Mother used to ring him at work for advice when [X] was a baby and that she was generally anxious. As already noted, I accept that she used to drink alcohol while alone with [X] and he found her “a bit tipsy” on several occasions with half a bottle of wine gone, when the Father returned home. The Father expressed his concerns about the Mother’s mental state at interview with a Family Consultant[93] in November 2009 and again in December 2011[94]. I accept that his concerns about the Mother’s capacity to care for [X] resulted in the Father insisting [X] attended day care 3 days a week from the age of 22 months, when [X] would leave home with the Father at 8.00a.m. and return with him at 6.00p.m, and later insisting he attend pre-school at the [G] School 5 days a week. I accept that the Father commenced these proceedings because of his ongoing concerns for [X]’s safety in the Mother’s care.
[92] Exhibit 2 at paragraph 150
[93] Memorandum of family consultant November 2009
[94] Memorandum of family consultant December 2011
The Father continues to lack trust in the Mother’s capacity to parent [X]. The Father worries about her inconsistency, her inability to understand and implement what she is told by health professionals about [X], including administration of medication. He is also concerned that she might leave [X] with her parents. The Father questions why the Mother told the Court in February 2012 that [X] was doing well at pre-school[95] when she had just been told by the pre-school to repeat him because of his developmental delay. He questions why the Mother would tell the Court in February 2012[96], and Dr K in July 2012[97], that [X] showed no signs of unusual behaviours/stress when she was aware he was displaying a range of troubling symptoms including biting and eye-blinking problems[98].
[95] Exhibit 9
[96] Exhibit 9
[97] At annexure GA38 of Father’s affidavit affirmed on 3 October 2012
[98] Exhibit 8 – pre-school notes dated 3 October 2011
Ms A gives a number of examples of the Mother’s failure to respond to information appropriately given by [X]’s treating practitioners. Examples include the Mother misunderstanding [X]’s eye specialist’s directions[99]; the Mother’s inappropriate interaction with staff when [X] was hospitalised for a urinary tract infection[100]; and the Mother denying she had seen results previously given her from the speech therapist[101]. Dr K’s report in July 2012 suggests the Mother was hesitant about what to tell him about [X]’s symptoms and behaviour, telling him she should have thought about her answers before coming to appointment.
[99] At paragraph 17 of affidavit of Ms A affirmed on 3 October 2012
[100] At paragraph 23 of affidavit of Ms A affirmed on 3 October 2012
[101] At paragraph 28 of affidavit of Ms A affirmed on 3 October 2012
The Father, the school and health professionals give a number of examples of the Mother’s struggle with aspects of parenting after the parties’ separation:
a)The Father reports to [omitted] Hospital (when Mother admitted for threatened suicide) in October 2009 that the Mother had very little patience with [X], often yelling at him when he cried or misbehaved and giving up on tasks that became too hard, such as feeding [X], changing his nappy and washing him.[102]
b)
Ms E, Head of Pre-School at the [G] School, has found it hard to communicate with the Mother. She finds her “overwhelmed, defensive and insecure”[103] and not open to advice. She told Dr P that the Father was more likely to follow through with suggested tasks at home than the Mother. In 2011, Ms E reports [X] soiling himself on occasions on the way to pre-school, the Mother getting stressed and wanting the school staff to change him. She has left [X] in the morning with his bottom caked in faeces for the staff to sort out. She used to drop [X] off well before the time requested by the school and have to wait with [X] until staff were available to take over, even after she changed her employment in mid-2012 and was not required to start work until 9 a.m., not far from her home. She would sometimes write “8.30a.m.” in the book for the drop off time when she had dropped him much earlier. Ms E told Dr P that the Mother did not appear to understand that when she arrived early she would have to wait until the allocated time.
Ms E told Dr P the Mother would ask for feedback about [X] in front of a room full of people and did not understand this was not appropriate[104].
c)Ms L, [X]’s speech therapist, is critical of the Mother’s basic parenting. She says she has trouble understanding advice. The Mother arrived at speech therapy on one occasion with [X] in soiled pants without a change of pants or clothing. On one occasion, the Mother permitted [X] to ride his “bike” through Ms L’s house. The Mother could not see the problem on either occasion.
d)The Mother has left [X] with the Father or Ms A, smelling of urine. In cross-examination, the Mother says [X] was very hard to change because he would not stay still or let her change him. The Father and Ms A both raise concerns about [X]’s hygiene on occasions when transferred to their care. Ms A recalls one occasion when, on collection, he had “food and sleep all over his face”, “his clothes were unwashed”, “he had sleep in his eyes”, “snot on his nose”, “vegemite all over his face and he smelled strongly of urine.” [105] They raise concerns about the Mother’s management of [X]’s eye condition, her treatment of his rashes and the appropriateness of the clothing she dresses him in. The Father says the Mother is defensive when he raises these issues.
e)The Father suspects that the Mother allows [X] to watch too much television, gives him too much chocolate, does not insist on ‘please’ and ‘thank you’ despite an agreement they had about these issues. He has concerns that the Mother lacks a routine for [X] and that she fails to set appropriate boundaries around his behaviour.
f)In October 2011, the pre-school reports [X] telling them in relation to a significant bite mark on his arm[106] that he bit himself at “Mummy’s house”. In cross examination, she said [X] bit himself on the arm on his way to school. When asked about it at the time by the school, the Mother says she “thought it was a mozzie bite.”[107] The Mother was unable to explain these inconsistencies to the Court.
[102] Exhibit 16
[103] Exhibit 2 at paragraph 333
[104] Exhibit 2 at paragraph 314
[105] At paragraph 11 of affidavit of Ms A affirmed on 3 October 2012
[106] Exhibit 10
[107] Exhibit 22
In cross examination, the Mother told the Court that she realised she had “done the wrong thing” when she read the subpoenaed notes from the school. She said she had already apologised to the school, but in oral evidence she offered to send a letter of apology to the school, and apologised to the Court. The Mother said she “forgot” to tell Dr K about [X]’s tics.
Dr P has some difficulty assessing [X]’s experience with the Mother day to day because he finds the Mother’s reports unreliable. However, Dr P said the pattern recognition he observed in the Mother was consistent with what the Father told him, and what others told him about the Mother. Dr P says the school notes which disclose the Mother is overwhelmed or unaware or not understanding the significance of leaving [X] in a dirty nappy at school concerns him “in terms of the Mother’s mental health, in terms of her attunement, problem-solving, cognitive functioning.”[108] Dr P says the Mother lacks a strong confidence in her ability to manage [X].[109] She told him that she uses the 1,2,3 strategy to discipline him, but in observation with [X], when she said 1,2, she moved to a different strategy, rather than following through. In his assessment, the Mother has a capacity vulnerability. He says that [X]’s attention seeking behaviour is much more marked in the Mother’s household than in Father’s. However, in his view, [X]’s relationship with the Mother over the last 6 months is probably stronger than it has been at any past time, because of the Mother’s reduced hours’ job and her reconnection with family. In Dr P’s opinion, the Mother needs moderately intensive parent-child work with Mr K or someone like him to strengthen her parenting capacity. She needs a professional observing how she interacts with [X] so she can be helped with particular strategies[110]. I agree with Dr P’s assessment.
[108] At page 27 lines 45 to 47 of the transcript of proceedings on 18 October 2012
[109] At page 34 lines 33 to 34 of the transcript of proceedings on 18 October 2012
[110] At page 47 lines 5 to 15 of the transcript of proceedings on 18 October 2012
I am satisfied the Mother has been overwhelmed at times by the very difficult challenges involved in managing and caring for [X], particularly when he was struggling with transitioning from nappies to the toilet (in my view quite understandably given his developmental delay). I am also persuaded that the Mother worries about whether truthful reporting to treating professionals might reflect badly on her. The Mother presents as a loving and devoted Mother who tries very hard to do the right thing by [X]. Dr P was pleased the Mother had used a “time-out for herself” strategy in managing [X]’s behaviour. As a young child, the Mother ensured [X] was seen by various health professionals and was diligent about getting him to appointments. She has encouraged his socialisation. Recently, the Mother did not want to leave [X]’s side when he was sick in hospital. I am satisfied the Mother has some wonderful parenting qualities. It was heart-warming to hear her talking about the activities she and [X] enjoy together – puzzles, games, outings etc. The Father praises the Mother’s capacity to “cheer him [[X]] up” and says she organises great birthday parties.
The Father describes the wide diversity of activities he shares with [X]. He and Ms A visit family, encourage bike riding, swimming, playing with a ball, walking the dog, playing on the beach, crafts and reading books. The Father believes in a consistent bedtime routine and giving [X] a role in household tasks. The Father presents as a parent who can set boundaries, and is genuinely concerned to get parenting right. I am satisfied he takes careful note, and also that he needs to continue to take careful note, of the advice he is given by Mr K and other health professionals, and I agree with Dr P that the Father’s obsessive characteristics may assist him in this regard.
However, I share Dr P’s concern[111] that the Father’s capacity to support [X] emotionally may be an issue. The Father is intense and idealistic and maybe too strict. The Mother’s sister, Mr R, says the Father used to be too hard on [X]. Mr K reported to Dr P that the Father can have unrealistic expectations of [X], although he can take feedback. Dr P believes that the Father’s parenting skills have grown markedly with inputs from various professionals including the staff of [X]’s school. He says[112]:
…there is a risk that this intensity could drive unrealistic expectations and an increasingly complex control agenda, which raises the risk of future coercion, alienation or abuse within the father-child relationship.
[111] Exhibit 2 at paragraph 354
[112] Exhibit 2 at paragraph 352
However, I also accept Dr P’s view that this risk is mitigated by his taking on board advice from Mr K and Ms B about his tendency to over-control. I agree with him that the Father needs to aim for “good enough” rather than “perfection” to achieve a less conflicted relationship with [X] over time.[113] I share Dr P’s view that the Father will be assisted by his wife’s sensitivity to [X] and capacity for empathy with him.[114]
[113] Exhibit 2 at paragraph 353
[114] Exhibit 2 at paragraph 354
Ms A deposes to an immediate recognition of [X]’s developmental delay when she started her relationship with the Father. She noticed his delay in toilet training, his difficulties with speech, his poor attention span and his need for constant physical contact. Mr K tells Dr P that Ms A is “very good, very sensitive”.[115] Ms E is very impressed with Ms A and says “she goes down to the child’s level”. I accept these opinions.
[115] Exhibit 2 at paragraph 288
The question arises as to the maternal grandparents’ capacity to care for [X] jointly. The Mother agrees with Dr P, the Father and the Independent Children’s Lawyer that [X] should not be left in the sole care of the maternal grandfather because of the possibility of him trialling his various “treatments” on [X]. However, the Father and the Independent Children’s Lawyer seek a restraint on the Mother leaving [X] in the grandparents’ joint care. The Mother opposes any such a restraint.
There are a number of references to the Mother’s dysfunctional relationship with her parents in her medical notes. When an in-patient at [omitted] Hospital[116] in June/July 2009, the Mother told staff that her parents had been highly “enmeshed” in her life. The notes record her describing the maternal grandfather as “authoritarian, controlling, narcissistic, scary, loud” and the maternal grandmother as “dad’s puppet; enables father’s abuse; anxious”.[117] The Mother refers to “my toxic family.”[118] On medical advice, the Mother cut off her parents for several months after leaving hospital in July 2009. On 5 August 2009, the [omitted] Hospital notes concerning the Mother include this summary:[119]
[116] Exhibit 19
[117] Ibid
[118] Ibid
[119] Exhibit 17
…trauma background smothered by parents and was smacked if she showed any emotions.
A letter dated November 2009 from Dr W, psychiatrist, refers to “intrusive and abusive behaviours of her scientologist parents” and “both parents both physically and emotionally abused her.”[120]
[120] Exhibit 18
The Mother told Dr P that as a child, the maternal grandfather was highly controlling and used to hit her. The Mother says that after she was bullied by a girl at school as a young teenager, the maternal grandfather gave her therapy that he referred to as “emotional release therapy” for 2 years, using scientology methods, including “reliving her birth”.[121] This was confirmed to Dr P by the maternal grandfather[122]. The Father told Dr P that at the Mother’s request, he used to advocate for her against her parents, whom he says the Mother found intrusive and over-bearing. The maternal grandfather did not give evidence in these proceedings, without explanation from the Mother. On the High Court authority of Jones v Dunkel, I draw the inference that the maternal grandfather’s evidence, if adduced, would not have assisted the Mother’s case.[123]
[121] Exhibit 2 at paragraph 29
[122] Exhibit 2 at paragraph 111
[123] Jones v Dunkel (1959) 101 CLR 298
Dr P interviewed each of the maternal grandparents separately. The maternal grandfather assured Dr P that he would not “treat” [X] until he was approximately 14 years of age. Dr P formed the view that the maternal grandfather has “poor personal boundaries” and an idiosyncratic belief system which he has imposed on the Mother in the past to the detriment of her mental health.[124] Dr P writes “the father is able to take the person right through periods of pain and emotional discomfort, even pre-natal experiences.” He claimed to have cured his son-in-law of perspiration “which was his mother’s transmitted in utero.”
[124] Exhibit 2 at paragraph 370
The maternal grandparents have been married for 54 years and according to the maternal grandmother “we do everything together.” They live on the Central Coast and resumed regular contact with the Mother and [X] in early 2011. The Mother says she now has a good relationship with her parents.
Dr P finds the Mother much more able to stand up to her parents than in the past. He says her ongoing therapy and involvement with [A] has improved her confidence and ability to voice her opinions. He says that the Mother seems to gain support now from her parents and not let them take over.[125] Nevertheless, Dr P believes that [X] is at risk of being “treated” by the maternal grandfather because of [X]’s developmental difficulties. And given that the maternal grandmother was untruthful with Dr P about her husband treating the Mother in the manner acknowledged by the Mother and maternal grandfather, Dr P has real concerns that the Mother and the maternal grandmother lack the “relational power” to stop the maternal grandfather practising his “treatment” on [X]. I accept his opinion which I find was supported by the Mother’s attempts, in cross-examination, to minimise the emotional pain her father caused her in the past, and her decision in recent months to copy the maternal grandfather with email correspondence between herself and the Father concerning [X].
[125] Exhibit 2 at paragraph 369
In these circumstances, I have decided [X] will not be left in the sole joint care of the maternal grandparents and the Mother will be restrained from permitting the maternal grandfather giving any therapy or counselling to [X].
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I have earlier addressed issues arising from [X]’s special needs. Dr P says [X] should not have long hours of care. Each party says they have flexibility in relation to their working hours, as does Ms A.
The Father has Armenian heritage and was raised in Lebanon. The Mother is Jewish. I have regard to [X]’s right to have an understanding of his parents’ heritage.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The Mother raised concerns about how the Father had managed [X]’s illness during the period of the adjournment in October during this hearing. The Mother had taken [X] to the Children’s Hospital at [omitted] on Tuesday 16th October 2012 because he was vomiting. The Father also attended. A Registrar diagnosed gastroenteritis, said it was contagious, told the parties he may take a week or so to recover and sent him home with the Mother. The following evening, [X] was transferred to the Father’s care for 2 nights. The Father left [X] in the care of his wife’s parents because he was required at Court for the hearing. [X] apparently remained unwell with some vomiting, a “runny tummy” and sore legs, though the Father had thought there had been some improvement as he was sleeping, eating and drinking. On the evening of 19 October, at changeover, the Father carried [X] into the Mother’s home because he was unable/not well enough to walk. The Mother says she had a terrible night because [X] was in such pain. She took him to his General Practitioner the next morning on 20 October, when he was sent directly to emergency at the Children’s Hospital. He was operated on for a ruptured appendix. The Mother was critical of the Father for failing to take him back to a doctor when [X] was under his care. I find no fault with either party in their management of [X] in that week. They had received advice from a specialist Children’s Hospital and they followed that advice.
The Father complains that the Mother does not contribute financially to [X]’s school or medical expenses, and does not take responsibility for his treatment or education. However, in cross examination, the Father concedes that the Mother is doing the best she can in difficult circumstances and that she pays child support of $40 a month.
Any family violence involving the child or a member of the child’s family
I have already addressed family violence issues.
Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or, the making of the order was contested by a person
This factor does not apply.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
It would be preferable for these proceedings to be finalised given the length of time the parties have been litigating over [X]’s parenting arrangements. Given the Mother’s mental disorder and her fluctuating parenting capacity, I find further proceedings more likely if [X] lives primarily with the Mother.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with the child, and to communicate with the child; and has facilitated, or failed to facilitate, the other parent participating in making decisions about major long-term issues in relation to the child and spending time with the child and communicating with the child; and has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
I have nothing to add under this factor.
Parental Responsibility
Section 61DA requires the court to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility for the child. Section 65DAC applies whenever a parenting order provides for shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in:
a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or
b)Family violence.
As already noted, I find it likely that there has been family violence in the parties’ relationship. Each party acknowledged the relationship has been volatile and their verbal exchanges, at times destructive. A question could therefore be asked as to whether the presumption in favour of equal shared parental responsibility applies in this case. However, each party states that the relationship between them has, for the most part, been respectful and civil in recent months, and their communication about issues concerning [X] considerably improved. I find some evidence in the email correspondence annexed to the Father’s affidavit that the parties have been trying to work together to establish a consistent approach to discipline, routine, manners and therapy exercises.
I find that [X] will benefit from each party being involved in long-term decision making concerning his welfare. Given the Father’s tendency to take control, I urge the Father to ensure he gives the Mother a genuine opportunity to consider and give an opinion about major issues which might arise. I have decided to make an order (by consent) for equal shared parental responsibility, which is an order supported by
Dr P and by the Independent Children’s Lawyer.
When an order is made for equal shared parental responsibility, section 65DAA(1) requires the Court to consider whether making orders that the child should spend equal time, or if not equal time, substantial and significant time with each parent would be in the best interests of the child and whether such an arrangement is reasonably practicable[126], having regard to the factors set out in section 65DAA(5). These factors include the distance between the parties’ homes, the parties’ capacity to implement such an arrangement, the parties’ capacity to communicate and resolve any differences between them, the impact such an arrangement would have on the child, and any other matter the Court considers relevant. The requirement of reasonable practicality “requires a practical assessment of whether equal time parenting [or substantial and significant time parenting] is feasible”.[127]
[126] Section 65DAA Family Law Act 1975. See also MRR v GR [2010] HCA 4
[127] MRR v GR [2010] HCA 4
Discussion and determination
Neither party, nor the Independent Children’s Lawyer, thinks the present equal time arrangement is working in [X]’s best interests, and Dr P believes a continuation of the present arrangements poses considerable risks to [X]’s welfare. I agree with Dr P that such an arrangement would not be in [X]’s best interests and would not be reasonably practicable because of its likely impact on [X]. I am therefore required to consider whether it is in [X]’s best interests, and reasonably practicable, for him to spend substantial and significant time with each parent. Each party and the Independent Children’s Lawyer seek an arrangement which satisfies the definition of “significant and substantial” time[128].
[128] Section 65DAA(3).
[X] needs both parents meaningfully in his life. [X] also needs considerable professional input to help him manage life with his disabilities and to reach his potential. The parties too, need professional assistance to manage their own individual issues, as well as to meet the considerable challenges involved in parenting a child with [X]’s developmental problems.
The question is whether it is in [X]’s best interests to live primarily with the Father, or primarily with the Mother. Dr P and the Independent Children’s Lawyer support the Father’s proposal. As already noted, I find there are risks in both households. It is a question of weighing the advantages and disadvantages of each.
On the Mother’s side, I am satisfied that she is a loving and devoted parent who is doing her very best for [X]. However, I accept the Father’s and Ms A’s observations and the observations of [X]’s pre-school and other health professionals, that the Mother has had difficulty coping with the demands of parenting, particularly the additional demands of parenting a child with developmental delay.
Dr P’s evidence, which I accept, is that the Mother has functional deficits as a parent. I am not persuaded that the Mother fully understands the extent of [X]’s disabilities. I found it noteworthy that the Mother’s sister and mother also showed limited understanding. I am particularly concerned that the Mother has been unable to give accurate histories of [X]’s symptoms and behaviours to treating professionals or always to understand their advice. I find the Mother understates the problems [X] presents and feels the need to defend him and protect him from adverse comment, rather than address the challenges he presents in an open and honest way. I find that [X]’s treatment is likely to be compromised if left in her hands. I also accept Dr P’s opinion that as [X] matures and his behavioural challenges increase, the Mother’s vulnerabilities are likely to increase which is likely to impact adversely on her currently positive relationship with [X].
In cross-examination, Dr P summarised his opinion in this way[129]:
..it’s the balance between the mother’s vulnerabilities and the degree of challenge presented by the child. .. if there’s an imbalance where the mother is struggling to be stronger than the child, increasingly over time the child becomes more challenging which makes her [the Mother] even more vulnerable…
[129] At page 3 lines 38 to 46 of the transcript of proceedings on 18 October 2012
On the Father’s side, I am satisfied that the Father is a loving and devoted parent who is doing his best for [X], and that Ms A is attuned and sensitive in her manner of caring for [X] and in her support of the Father in his parenting role. However, I find that the Father lacks empathy with [X], and is very dependent on professional advice to mitigate the risks caused to [X] by that deficit. I find the Father lacks sufficient insight into the impact of his past behaviour on the Mother and its effect on [X], and I am satisfied that there is a risk that he will continue to undermine the Mother as [X]’s other parent, a role fundamental to [X]’s welfare. While the Father says that Dr P’s report has had a real impact on him, and he has sought further assistance from Ms B and Mr K about issues identified about him, my concerns about his capacity to support [X]’s relationship with the Mother long term remain, as do my concerns about the impact on [X] of his “controlling, coercive” personality style. However, I find that the Father and his wife have a consistent routine in their home, and expose [X] to a diverse range of child-focussed activities. I find the Father has committed to a regular and long term regime of therapy for [X], to help [X] improve in all areas he finds difficult. I am satisfied the Father endeavours to follow recommendations and is gaining in confidence as to the best way to manage [X]’s day to day parenting.
Dr P says that [X] is at risk of psychological harm with his “behavioural difficulties worsening in the context of anxious-ambivalent attachment and the child’s developmental progress being disrupted because of the Mother’s deficits in meeting his special needs.”[130] If the Mother had primary care or 50% care, these risks would be significant. He says that the Father alone, but in particular the Father with Ms A are more able to meet [X]’s needs than the Mother, though it would be ideal for [X] if the Mother also maintains a significant role in [X]’s life and engages in interventions aimed at improving her capacity to guide the child in his development. Dr P firmly believes that if the Mother has [X] in her care for less time than she does presently, that time is more likely to be positive and enjoyable and its overall developmental impact on [X], less.
[130] Exhibit 2 at paragraph 398
On a weighing of all the factors in this complex case, I have decided to adopt substantially Dr P’s recommendations as to [X]’s time with each party. This arrangement gives [X] a strong home base with structure and positive input to assist his well being while allowing the continuation of substantial involvement from the Mother. I agree with Dr P that if the Mother has more time, and it impacts on [X]’s neuro-developmental needs, the Father is likely to be concerned and may again become intrusive and coercive in his dealings with the Mother, which will undermine her confidence and impact adversely on [X].[131]
[131] At page 54 of the transcript of proceedings on 18 October 2012
I have decided that the change in [X]’s arrangements will be a 2 stage process. [X] will spend 5 nights a fortnight (3 nights one week and 2 nights the other) with the Mother until [X]’s 6th birthday, and thereafter 4 nights a fortnight (3 nights one week and 1 in the other). Dr P recommended that any change in arrangements be implemented relatively quickly with minimal changes or complications[132]. [X] will spend half school holidays with the Mother and other special days. Changeovers will, where possible, occur at pre-school/school.
[132] At page 15 of the transcript of proceedings on 18 October 2012
School holidays at the [G] School are substantially in line with NSW Public School holidays with the exception of the July school holidays which extend to 3.5 weeks. [X] will spend half his school holidays with each party in all school holiday periods. During the July and Christmas school holidays, he will generally spend periods of no more than 7 days at a time with each party until he is 10 years of age.
The Father wants the opportunity to take [X] to Lebanon for a holiday so [X] can meet his extended family. Lebanon is where the Father grew up. He would like to stay for up to 4 weeks. The Mother opposes such an order fearing the Father will not return with [X]. She says the Father has, in the past, threatened to cut her off from [X] by taking him to Lebanon[133]. The Father denies this allegation. I find it likely that the Father did make this threat in the heat of one of the parties many arguments, but I am not persuaded that he has any intention of staying in Lebanon. The Father has lived here for over 10 years, he has married an Australian, he is establishing his own business here, he is dedicated to [X]’s professional supports and committed to [X] attending his present school. I have regard to the provision in Part 7 of the Act, already referred to, that children have a right to know their own culture. In addition, I am not satisfied it is in [X]’s best interests to be denied the opportunity to meet members of his extended paternal family. Dr P has no concerns about [X] travelling overseas for up to 3 weeks as long as the trip is delayed until [X] has 9-12 months to properly settle in to his new parenting regime[134]. [X] will not be permitted to travel overseas until he is 7 years of age but his name will be removed from the airport watchlist, and reciprocal restraints will be made in relation to each party removing [X] from Australia in accordance with this Order.
[133] At paragraph 32 of Mother’s affidavit affirmed on 8 October 2012
[134] At page 17 lines 40 to 42 of the transcript of proceedings on 18 October 2012
Dr P recommends the Mother consult Ms G, psychologist in the long term and that she consult a psychiatrist skilled in treating both psychotic disorders and anxiety and complex trauma and that the Mother involves her sister, close friend or trusted other to speak with the treating professional about how the Mother is managing all aspects of her life. I have followed these recommendations.
A number of orders including, but not limited to, parental responsibility, [X]’s time with each party on special days and changeover arrangements, were agreed between the parties, and those Orders have been included. I have incorporated those Orders into the substantive Orders the Court was asked to determine in a particular Order for ease of reference.
For all the reasons I have given, I am satisfied that the orders set out at the beginning of these Reasons are in the best interests of [X].
Costs of the Independent Children’s Order
The Independent Children’s Lawyer seeks costs against the parties in the sum of $16,530.61. Each party’s counsel agrees that this is a complex case which required the assistance of an Independent Children’s Lawyer and that it was appropriate for counsel to appear at hearing. Both counsel agree that the only relevant factor for the Court to consider under section 117(2A) is each party’s financial position.
The Mother’s counsel submits that the Mother earns a net weekly income of $660, pays rent of $350 a week and makes a car loan repayment of $50 a week before meeting all other weekly expenses for herself, and [X] when in her care. The Mother also pays $40 a month to the Father by way of child support. The Mother has savings of under $2,000, a car and household contents, otherwise no assets. The Mother’s parents have been meeting her legal fees. In these circumstances, I am not satisfied the Mother has the capacity to make a contribution to the Independent Children’s Lawyer’s costs.
Having originally sought an order for the Mother to reimburse the Father for half of Dr P’s fees of over $12,000, the Father’s counsel submits that, having heard details of the Mother’s financial position, the Father no longer seeks that order, and agrees to meet the whole of Dr P’s fees. However, counsel submits that the Father is not in a position to make any further contribution towards the Independent Children’s Lawyer’s costs. Counsel highlights the Father’s affidavit evidence that he earns an estimated $8,000 a month, but has modest assets and significant liabilities. The Father has paid over $40,000 in legal fees and disbursements (including nearly $10,000 for Dr P’s report) and after hearing, will owe further fees of over $60,000.[135] He has a credit card debt in excess of $35,000. Counsel submits that the Father has met substantial costs associated with [X]’s therapies, as well as [X]’s school fees, without assistance from the Mother, and this is likely to continue long-term. I accept these submissions. I find the Father would suffer financial hardship if ordered to contribute further and have therefore otherwise dismissed the Independent Children’s Lawyer’s application for costs.
[135] Exhibit 28
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate:
Date: 6 December 2012
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