BACKFORD & HERZBERG

FAMILY COURT OF AUSTRALIA

BACKFORD & HERZBERG

[2013] FamCA 779

FAMILY LAW – CHILDREN – Interim Parenting – Where no parenting orders are in existence – Where the children have lived in a shared care arrangement since May 2012 by agreement of the parties – Where the mother sought a return to the shared care arrangement which existed prior to the father’s unilateral retention of the children – Where the father proposed the children spend reduced time with the mother and no overnight time – Where the issues in dispute centred around the mother’s parenting capacity – Whether the issues concerning the mother’s parenting capacity constituted, either individually or collectively, an unacceptable risk to the children – Consideration of the best interests of the child – Consideration of s 60CC factors – Where the court determined that the father’s complaints about the mother’s care of the children lack substance, either individually or cumulatively – Where the court is not satisfied that the children would be placed at an unacceptable risk if they resume spending extended time and staying overnight with the mother – Where, on the evidence before the court, it was determined that the best course is to reinstate the essence of the previous shared care arrangement – Where it is appropriate that interim parenting arrangements are reconsidered when an expert report is available to parties.

Family Law Act 1975 (Cth) 61C, 61DA

APPLICANT:

Ms Backford

RESPONDENT:

Mr Herzberg

FILE NUMBER:

SYC

367

2013

DATE DELIVERED:

10 September 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

29 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ladopoulos

SOLICITOR FOR THE APPLICANT:

Rockliffs Solicitors & Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Simpson SC
Ms Clifford

SOLICITOR FOR THE RESPONDENT:

Firm HH

orders pending further order:

That the children
C Herzberg born on … 2008 and
H Herzberg born on … 2010
(“the children”) live with the parents as follows during school term time:
1.1with the father:
1.1.1in Week 1 from the commencement of school on Friday until the commencement of school on Monday and from the conclusion of school on Tuesday until the commencement of school on Wednesday
1.1.2in Week 2 from the conclusion of school on Tuesday until the commencement of school on Friday
1.2with the mother:
1.2.1in Week 1 from the conclusion of school on Monday until the commencement of school on Tuesday and from the conclusion of school on Wednesday until the commencement of school on Friday
1.2.2in Week 2 from the conclusion of school on Monday until the commencement of school on Tuesday and from the conclusion of school on Friday until the commencement of school on Monday
That the children live with each parent for one half of all school holidays, being the first half thereof with the mother and the second half with the father unless otherwise agreed in writing, subject to orders 3 and 4.
That the children spend time with the father:
3.1 from 9:00am until 5:00pm on Fathers Day
3.2for approximately three hours on the birthdays of each child and the father, being from the conclusion of school until 6:00pm on school days or from 3:00pm until 6:00pm on non-school days unless otherwise agreed in writing
3.3from 10:00am on Christmas Eve until 10:00am on Christmas Day in even-numbered years and from 10:00am on Christmas Day until 10:00am on Boxing Day in odd-numbered years unless otherwise agreed in writing
That the children spend time with the mother:
4.1 from 9:00am until 5:00pm on Mothers Day
4.2for approximately three hours on the birthdays of each child and the father, being from the conclusion of school until 6:00pm on school days or from 3:00pm until 6:00pm on non-school days unless otherwise agreed in writing
4.3from 10:00am on Christmas Eve until 10:00am on Christmas Day in odd-numbered years and from 10:00am on Christmas Day until 10:00am on Boxing Day in even-numbered years unless otherwise agreed in writing.
Without prejudice, the mother is restrained from administering any prescription medication to either child, other than substances which have been specifically prescribed for that child by a medical practitioner.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Backford & Herzberg has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 367 of 2013

Ms Backford

Applicant

And

Mr Herzberg

Respondent

REASONS FOR JUDGMENT

the proceedings

These proceedings concern interim parenting arrangements for the children C, born in 2008 and now aged five, and H, born in 2010 and presently three years of age. By agreement of the parties, the children have lived in a shared care arrangement since approximately May 2012. There are no existing parenting orders.
Pursuant to this agreement the children were due to be returned to the mother, Ms Backford, on 21 July 2013. On that date the father, Mr Herzberg, elected unilaterally to retain them. He has since permitted the children to spend only very limited time with the mother. The father filed an Initiating Application and Notice of Child Abuse, Family Violence or Risk of Family Violence on 23 July 2013.
The father sought no interim parenting orders in his Initiating Application. Accordingly, the proceedings came before the court for consideration of interim parenting arrangements only because the mother filed an Application in a Case on 24 July 2013.

Background

The father was born in 1974 and is 39 years of age. He is in full time practice as a legal professional. The mother was born in 1973 and is currently aged 40 years. She is in full-time employment as a legal professional.
When the parties separated on 26 December 2011, the father moved to his parents’ home at Suburb Y. The mother and the children remained in the former matrimonial home at Suburb D until May 2012. She then moved into different accommodation at Suburb D and the father returned to the former matrimonial home.
The mother contended that the father visited the children at the former matrimonial home on an average of three evenings per week and that they spent one full day each weekend with him during this period. They always slept at the former matrimonial home.
In May 2012 the parties implemented an agreement whereby the children lived with the mother each Sunday, Monday and Tuesday and every alternate Wednesday. They lived with the father each Thursday, Friday and Saturday and every alternate Wednesday. The parties shared the use of their car according to which parent had the care of the children from time to time.
The father denied that, historically, the mother has been the primary carer of the children. He swore an affidavit in response to the mother’s written evidence, however, and did not take issue with her account of arrangements for the care of the children during the marriage. The mother maintained that she commenced maternity leave in December 2007 and remained at home with the children until October 2010. She then resumed employment for two days per week, during which the child C attended long day care and the child H stayed for one day with each of his grandmothers. The father practised as a legal professional on a full-time basis during this period.
The mother contended further that in late January/early February 2012 she increased her work commitments to four days per week, which excluded Wednesday. The child C attended pre-school or day care and the child H spent Monday, Tuesday and Friday with the maternal grandmother and Thursday with the paternal grandmother. The mother has now resumed employment for five days per week.

The Evidence and Witnesses

The applicant mother relied upon the following affidavits:
1)     Ms Backford (the mother) sworn on 24 July 2013, 15 August 2013 and16 August 2013
2)     Ms R (the mother’s sister) sworn on 24 July 2013
3)     Mr B (the maternal grandfather) sworn on 24 July 2013
4)     Mrs B (the maternal grandmother) sworn on 23 August 2013.
Senior counsel for the respondent provided the following list of “documents” upon which the father relied:
1)     Initiating Application filed 23 July 2013
2)     Response to Application in a Case filed 16 August 2013
3)     Affidavit of Mr Herzberg (the father) sworn 16 August 2013
4)     Affidavit of Ms Z sworn 12 August 2013
5)     Affidavit of Mr Z affirmed 12 August 2013
6)     Affidavit of the father affirmed 19 August 2013
7)     Affidavit of the father affirmed 28 August 2013
8)     Subpoena to Telstra filed 26 July 2013
9)     Subpoena to Optus filed 26 July 2013
10)Subpoena to Vodafone filed 26 July 2013
11)Subpoena to Virgin Mobile filed 26 July 2013
12)Subpoena to Dr P filed 29 July 2013
13)Subpoena to Ms R
14)Notice to Produce to the mother
Additionally, on the day of the interim hearing the father sought leave to issue a subpoena returnable instanter to the maternal grandmother for production of her mobile telephone. I refused that application and the maternal grandmother declined to produce her telephone on a voluntary basis. I could see no good reason why that leave should be granted at such a late stage in the interim proceedings.
The father brought to court an expert, Mr T, who was instructed to inspect the mobile telephones of the mother and Ms R in a quest for text messages. The father sought production of the telephone of the maternal grandmother for the same purpose. The hearing of the competing interim applications was delayed while Mr T inspected the two mobile telephones, with the end result being that he found no text messages which would assist the father’s case.
The father’s affidavit sworn on 16 August 2013 consisted of 149 paragraphs, to which was attached an exhibits folder of some three centimetres in thickness. At the interim hearing I indicated that I had not read these exhibits and suggested that counsel for the father take me to any specific documents which were relevant to his case. As I reserved my judgment on 29 August 2013, I have now taken the opportunity to look at and read every one of the documents in the father’s folder of exhibits.

The Proposals of the Parties

The applicant mother proposed, essentially, a return to the shared care arrangement which had existed prior to the father’s unilateral retention of the children on 21 July 2013. She proposed one minor change, which would avoid changeovers on weekends. The children would live with her from Monday afternoon until Tuesday morning and from Wednesday afternoon until Friday morning in Week One and from Monday afternoon until Tuesday morning and from Friday afternoon until Monday morning in Week Two. The mother proposed that the children spend time with the father for five days in each of the terms one, two and three school holidays and for alternate weeks during the Christmas vacation. Her proposal contained provision for the children to spend time with each parent on special occasions. She proposed that the parties have equal shared parental responsibility for the children.
The father proposed that the children live with him and spend time with the mother each Tuesday and Wednesday from 3pm until 6pm and every Saturday from 10am until 6pm. The father made no proposal in respect of parental responsibility, school holidays or special occasions.

Issues in Dispute in the Proceedings

In his Outline of Case documents senior counsel for the father identified the issues in the proceedings as follows:
1.Whether the mother’s parenting capacity is compromised by evidence, as asserted by the father of:
a.Administering prescription medication to the children without a prescription;
b.Her own drug use/alcohol misuse;
c.Inattention to the children’s medical needs;
d.Allowing the parties’ school age child to use a dummy, not wear underwear and attend at school late;
e.Allowing the parties toilet trained child to wear a nappy for “emotional comfort”
2.Whether the above individually or collectively constitute an unacceptable risk to the children;
3.Whether the children would be served by a cautious approach which facilitates their relationship with each parent but protects them from risk and
4.Whether the court would be assisted by expert evidence.
I will now consider each of these issues in turn and collectively.
The allegation that the mother improperly administered prescription medication to the children
The father alleged that the mother administered a medication known as “melatonin” to each of the children. It was common ground that this medication was prescribed for J, the daughter of the mother’s sister Ms R, who suffers from autism.
The mother categorically denied that she has given this medication to either child and readily offered consent to an order which would restrain her from doing so. The mother gave evidence that the bottle of melatonin in her refrigerator was prescribed for her niece J and had been left there during a visit to her home by her sister.
The father’s evidence that the mother gave melatonin to the children consisted of statements made by each of the boys to him. He deposed in his affidavit of 16 August 2013 that C asked him “how medicine works” on the evening of Thursday, 18 July 2013. The father then recounted a conversation in direct speech about a “chocolate medicine” which the child said that the mother gave to him. This account of the conversation was given by the father:
On the evening of Thursday 18 July 2013, [C] asked me how medicine works. At the time, [H] was taking antibiotics for a chest infection. I explained to [C] that [H’s] medicine was poison for germs, and when swallowed, it killed the germs. [C] and I then had a conversation as follows:
[Child C]:“What does the chocolate medicine that Mummy gives me   do?”
Me:               “What’s chocolate medicine?”
[Child C]:     “Mummy gives it to me and [H] at night time.”
Me:               “Is it chocolate?”
[Child C]:     “No.”
Me:               “Is it junk food?”
[Child C]:     “No.”
Me:               “What does it taste like?”
[Child C]:     “It’s yucky.”
Me:               “What’s it for?”
[Child C]:     “I don’t know.
The father deposed that he asked H later “does Mummy give you chocolate medicine?, to which the child replied “yes”.
Curiously, the father then deposed as follows:
17. When I put [C] to bed that night, I asked him some further questions about “chocolate medicine? [C] told me that:
·Mummy gives him and [H] “chocolate medicine” every night before bed;
·it comes in a small bottle with a white lid and a small label, and you can see the medicine through the bottle;
·Mummy gives it to him using a syringe;
·it is chocolate coloured, you cannot see through it, and it tastes yucky, so he has to drink water afterwards;
·Mummy gives it to him even if she does not give him his “nose medicine” (Avamys) or his “puffer medicine (Alvesco);
·Mummy has been giving it to him for a long time;
·he has had it hundreds of times;
·Mummy said he has to have it until his coughing and his asthma are better; and
·Nanny ([maternal grandmother]) never gives it to him and Poppy ([maternal grandfather]) never gives it to him, only Mummy.”
I regard this evidence as “curious” because this paragraph consists of a series of conclusions and general statements, rather than the precise accounts in direct speech of alleged conversations with the children which appear elsewhere in the father’s affidavits.
The father deposed that he went to the mother’s home with C and asked the maternal grandfather for “a brown medicine that [the mother] gives to the boys each night in a syringe”. The maternal grandparents currently live with the mother and children. The maternal grandfather handed to the father a bottle bearing the name “[J R]”. The maternal grandfather deposed that he handed a bottle of medicine to the father from the refrigerator because he thought that it was needed to treat C’s asthma.
The father deposed in his affidavit of 16 August 2013 that he then sent a text message to the mother which read: “[C] said you give him ‘chocolate medicine’ before bed each night. What is he referring to?” The mother replied “Chocolate medicine is prune juice”.
The father deposed that, on return from the mother’s home with the bottle of melatonin, he took H into his bedroom alone and had the following conversation:
“30. When I got home, I put [C] in front of the television in the lounge room, and took [H] into my bedroom and closed the door. I then had a conversation with [H] relevantly as follows:
Me:“Do you know what this is?” (showing him the bottle of melatonin)
[Child H]:     “The chocolate medicine.”
Me:               “Who has the chocolate medicine?”
[Child H]:     “Me and [C].”
Me:               “Who gives it to you?”
[Child H]:     “Mummy. When it’s night time.”
Me:“Does she just give it to you sometimes, or does she give it to you all the time?”
[Child H]:“All the time…just sometimes.”
I then drew up some melatonin in a syringe and showed it to [H].
Me:“What’s inside here?” (pointing to the syringe)
[Child H]:“Chocolate medicine.”
Me:“How many times have you had chocolate medicine? Have you had it a lot of times, or not many times?”
[Child H]:“A lot of times.”
Me:“Does Nanny give it to you?”
[Child H]:“No, Mummy.”
Me:“Does Poppy give it to you?”
[Child H]:“Mummy.”
Me:“Anyone else or just Mummy?”
[Child H]:“Just Mummy.”
Me:“Does she give it to you in the morning or at night?”
[Child H]:“Night and morning.”
The father deposed that he then took C into his bedroom alone and the following conversation took place:
“31. I then took [H] into the lounge room, and brought [C] into my bedroom and closed the door. I had a conversation with [C] relevantly as follows:
Me:“Have you seen this before?” (showing him the bottle of melatonin)
[C] nodded.
Me:“What is it?”
[Child C]:“It’s chocolate medicine.”
Me:“Who has chocolate medicine?”
[Child C]:“Me and [H].”
Me:“Does Mummy have it too?”
[C] shook his head.
Me:“Does Nanny have it?”
[C] shook his head.
Me:“Just you and [H]?”
[Child C]:“Yes.”
Me:“When do you have it?”
[Child C]:“At night time.”
Me:“Do you have it every night or just some nights?”
[Child C]:“Every night.”
Me:“What colour is chocolate medicine?”
[Child C]:“Brown.”
I then drew up some melatonin in the syringe and showed it to [C].
Me:“What is that stuff in the syringe?”
[Child C]:“It’s medicine.”
Me:“Is that the chocolate medicine you have?”
[Child C]:“Yes.”
Me:“What does it taste like?”
[Child C]:“It tastes yucky.”
Me:“And so what do you do after you have it?”
[Child C]:“I have water.”
Me:“Do you? Because it tastes too yucky?”
[Child C]:“Yes.”
Me:“How many times has Mummy given you chocolate medicine?”
[Child C]:“100…200.”
Me:“200 times?”
[Child C]:“Yes.”
Me:“But it’s nearly empty now. Was there another bottle of it before, do you know?”
[Child C]:“No.”
Me:“Did it used to be full, do you know?”
[Child C]:“Yes, it used to be full.”
Me:“It used to be full?”
[C] nodded.
Me:“How do you know?”
[Child C]:“I don’t know.”
Me:“You don’t know?”
[Child C]:“I don’t know.”
Me:“No, think hard.”
[Child C]:“It used to be full.”
Me:“Where was it up to before?”
[C] indicated the top of the bottle.
Me:“Up to the top?”
[Child C]:“Yes.”
Me:“And so who drank it all?”
[Child C]:“Me and [H].”
Me:“Has Mummy been giving it to you for a little bit of time or for a long time?”
[Child C]:“For a long time.”
Me:“Does Nanny give you chocolate medicine ever?”
[Child C]:“No.”
Me:“Does Poppy give you chocolate medicine?”
[Child C]:“No.”
Me:“Does Daddy give you chocolate medicine?”
[Child C]:“No.”
Me:“Who gives you chocolate medicine?”
[Child C]:“Mummy.”
Me:“Is she the only person who gives it to you?”
[Child C]:“Yes.”

It seems to me that this “conversation” might more accurately be described as an extensive questioning by an adult of a five year old child. I would note that the father included in his affidavit passages in his conversations with each of the children which are “relevant” in his view. In the limited context of these interim proceedings it was obviously impossible for the mother to explore what conversation, if any, preceded the children’s statements about “chocolate medicine”. It follows that I cannot tell how the father commenced these conversations, nor what suggestions he may have made to the children.
I have real concern that the father’s questioning of the children would have placed considerable pressure on them to agree with propositions which he suggested to them. A striking example was his refusal to accept C’s statement that he did not know whether the bottle was full and his insistence to the five year old child “no, think hard”, before C said that “it used to be full”.
On the evening of 19 July 2013 the mother sent these text messages to the father:
[Father’s name], you need to stop cross-examining the children, you are dragging them into your anxiety-filled OCPD life, FYI I discussed with [Ms R] the benefits of melatonin months ago when [C] wasn’t sleeping and she left it at my place. I decided against it after reading the literature on it. Please stop harassing my family, please stop cross-examining the boys, please get yourself some help for the sake of the boys.
Rest assured that if I were to give the boys prescription medication, I would tell you. Now please, leave me alone. Stop harassing me, stop harassing my family, but most of all, stop cross-examining the children.”
The reference in the mother’s test message to the father’s “OCPD life” was to his obsessive-compulsive disorder. The father admitted in his affidavit of 19 August 2013 that he suffers from this condition. He deposed:
Whilst it is true that I have obsessive-compulsive disorder (OCD), MY OCD manifests itself mainly at work, where I have a compulsive need to check and recheck (and recheck) all of my work to make sure that it is as comprehensive, as accurate and as perfectly written as I can possibly make it. I do this with everything, from simple emails to submissions and bills. Another symptom of my OCD is that I wash my hands quite a lot (although this symptom has diminished in recent years).
A text message which the father sent to the mother on 18 July 2013, prior to his alleged conversation with C about “chocolate medicine”, suggested that he was then contemplating a reduction in the children’s time with the mother. He sent this message to her at 12:56pm on 18 July 2013:
Children need routine. At your place, they have only chaos. [H] does poopas in his nappy at your place, whereas he uses the toilet when he is with me. You send [C] to school without underpants and you give him a dummy. You never practice [C’s] speech with him, nor do you do reading with him. The boys are going backwards when they are with you. I think it would be best for the boys if they stayed with me from Sunday night to Thursday night and stayed with you on Friday and Saturday nights.
The child C’s alleged statement was the only evidence that the mother ever possessed a full bottle of melatonin. It was, however, the foundation of calculations by senior counsel for the father which were said to establish that the mother administered melatonin to the children. These calculations and propositions were as follows:
1.When the father received the bottle of melatonin from [the maternal grandfather], there was approximately 15mL of melatonin left in it.
·          The melatonin is contained in a 100mL bottle
·          The melatonin was purchased on 30 March 2013
·[Ms R] left the bottle at the mother’s place approximately 3 months prior to swearing her affidavit on 24 July 2013
·          [J’s] dosage of melatonin was 0.5mL per night
·Assuming that the bottle was left at the mother’s place on 24 April 2013 (3 months prior to 24 July 2013), [J] could only have been given 26 doses of melatonin – there being 26 nights between 30 March (when the melatonin was purchased) and 24 April.
·At [J’s] dosage of 0.5mL, 26 doses amounts to 13mL of melatonin.
·Accordingly, if the mother’s version of events were true, there should have been approximately 87mL of melatonin left in the bottle when it was given to the father.
·Instead, there was only 15mL of melatonin left in the bottle.
2.The fact that there was only 15mL of melatonin left in the bottle is consistent with the mother having been administering the melatonin to the children.
As noted, this series of calculations is predicated upon the assumption that Ms R left a full bottle of melatonin in the mother’s refrigerator. The only evidence that the bottle was full was C’s equivocal response to the father’s leading question. In my view, this submission does not assist the father’s case.
Much was made in submissions on behalf of the father of alleged inconsistencies on the issue of “chocolate medicine” and the bottle of melatonin in the evidence of the mother and her witnesses. Without the benefit of cross-examination I am in no position to prefer the evidence of any witness over another. In particular, I attach no particular significance to the father’s account of a conversation with Ms R, in which he maintained that she said “But that was ages ago. I don’t know if she is still giving it to him”. Ms R gave a different account of this conversation which included no such statement.
I was unpersuaded that the father’s version should be preferred by an alleged contemporaneous note which he made during his telephone conversation with Ms R. (item 3 of exhibit JH1 of father’s affidavit affirmed 16 August 2013) This note read in part “You gave [the mother] a bottle of melatonin to give to the boys. I was wondering what it is used for”. In my view that note could be read as a statement by the father to Ms R. These words do not necessarily constitute a statement by Ms R that she gave a bottle of melatonin to the mother for administration to the children.
On behalf of the father, it was suggested that there was a sinister inference to be drawn from the fact that no text messages which predated 4 August 2013 were found on the mobile telephones of either the mother or Ms R. Effectively, the father contended that the mother and her sister erased these messages to conceal exchanges between them which would establish that she has given melatonin to the children. In my view, this inference does not necessarily follow, as there could be a number of reasons why there are no messages on the telephones bearing dates earlier than 4 August 2013.
On behalf of the father it was submitted that “it is very surprising that there are no texts from the mother to the father about chocolate medicine, given the volume of communications about almost every aspect of the children’s care”. It is true that the words “chocolate medicine” appear in these exchanges only from 18 July 2013. There is earlier reference to prunes and prune juice, for example, in a message dated 24 March 2010 relating to the child C. There is a message concerning the child H dated 19 August 2012 which reads “is he still constipated?”. The mother explained that she did not think it necessary to inform the father of a “very slight case of constipation” before he retained the children.
The father included a number of articles on the alleged dangers of melatonin to children as item 6 of exhibit JH& to his affidavit. He also included a report dated 12 August 2013 from a Dr E, consultant paediatrician. Interestingly, Dr E reported inter alia as follows:
5. What is the maximum strength of melatonin that can be obtained in Australia without prescription?
Answer: No strength of melatonin.
On the day of the interim hearing I was informed, without objection, by counsel for the mother that his instructing solicitor had purchased a bottle of melatonin tablets “over the counter” from Priceline Pharmacy during the luncheon adjournment (exhibit 1 in these proceedings). The label of the bottle reads: Melatonin, Sleep Formula, Homeopathic”.
I cannot tell whether the father was selective in his inclusion of material from the internet which suggested that melatonin is dangerous for children. That issue will need to be addressed by expert evidence at a final hearing if necessary.
In any event, I am not satisfied on the balance of probabilities that the mother administered melatonin to either child. As noted, she offered to provide an undertaking or consent to an order that she refrain from giving this medication to the children. I reject the submission on behalf of the father to the effect that the mother cannot be trusted to comply with an injunction. The basis for this submission was that she has used cocaine, and therefore “committed a serious breach of the law”. As appears below, I am not satisfied that the mother used cocaine at any time. Additionally I am prepared to assume that she, as a legal professional, is conscious of her duties and responsibilities as an officer of the court.
Alleged abuse of drugs and alcohol by the mother
The father alleged that he saw a text message on the mother’s telephone in January 2012, in which she stated that she had used cocaine with her boss the previous week. Her deposed that H was watching a video on the mother’s telephone when he collected the children to take C to his asthma specialist. Clearly without her consent, the father took it upon himself to examine the text messages on the mother’s phone. He did not set out the precise words of this alleged text message in his affidavit of 16 August 2013.
The mother denied that she used illegal drugs on this or any other occasion. She claimed that any reference by her to illegal drug use in an email, text message or on Facebook was “in the context of a joke”.
The father deposed that he found the mother’s iPad in the car which they share during February 2013 when he collected the children. He took it upon himself to open her Facebook application that night and read her messages. He claimed that he saw a message to a friend which stated that the mother was angry that he read her telephone messages and “found out about her taking cocaine with her boss”. He claimed also that he saw a message to the same friend in which the mother stated that her “crazy breakup period was over”. He contended that he saw another message to her sister in late 2012/early 2013 in which the mother stated that she was taking what he described as “a very high dose of antidepressant medication”. There was no other evidence whatsoever relating to any use of antidepressant medication by the mother.
In his affidavit of 19 August 2013 the father deposed that he took four photos of the mother’s telephone on about 24 January 2012 and one of her iPad on about 1 February 2013. I am unsure why the father felt that he was entitled to take these photos. Copies of these photos were annexed to his affidavit of 19 August 2013. Interestingly, the message concerning the mother’s alleged use of antidepressant medication was not among these photos.
I cannot exclude the possibility that the mother was joking with a friend when they exchanged these messages. In any event, the father raised one alleged incident of drug use by the mother in January 2012 which was apparently insufficient to prompt him to take any action at the time. He made no suggestion that he saw her use illegal drugs during the marriage or that there is any other suggestion of her having done so since the separation. In my view, the evidence adduced by the father failed to establish that the mother has ever used illegal drugs.
In support of his contention that the mother consumes alcohol to excess, the father relied on one incident on 30 November 2012, when a taxi brought her to the former matrimonial home. He deposed that a resident of the building told him, inter alia, “[The mother] is downstairs in a cab and is in a real mess”.
The mother claimed that she became ill and developed a fever while working late that night. She denied that she had drunk any alcohol that evening. She deposed that she heard a woman say to the father “She seems very sick. Maybe she is drunk and needs help”. She said that she took Panadol and slept when she arrived home and felt better the next day.
On 30 November 2012 the father did not observe the mother and, in my view, he had no valid basis for his assertion that she was substance affected on this occasion. He made no complaint of excessive alcohol consumption by the mother in the seven years of the parties’ cohabitation. He offered no evidence that he has observed her under the influence of alcohol at any time since the separation.
The only other evidence which the father offered to support his contention that the mother uses alcohol excessively was the text message which he photographed on her phone in January 2012, in which she stated “I had a funny night, was completely drunk…”. As noted, the mother asserted that she joked with friends in these text message exchanges and I cannot exclude that possibility.
In my view the father failed to establish, on the balance of probabilities, that the mother consumes alcohol to excess and/or that she uses illegal drugs. Certainly, there was no evidence that the children’s safety and wellbeing have ever been compromised for any reason associated with substance abuse while they have been in her care.
The mother’s alleged inattention to the children’s medical needs
The father alleged that the mother failed to secure proper medical treatment for H on a night in February 2012, when he was hospitalised on the following afternoon. The father contended that the mother had told him it was “too difficult” to take him to a hospital along with C. The mother denied that she failed to take H to hospital for that reason. She said that his condition improved after she gave him Panadol and she decided that it was not necessary to take him to hospital during the night. She asserted that she obtained the first available appointment with a general practitioner at 3:00pm on the following day. By that time H’s condition had deteriorated and the doctor sent him to hospital in an ambulance.
The father alleged that the mother failed to follow medical advice to keep H at home for two weeks following a tonsillectomy on 16 August 2012. He contended that the child became ill on 23 August 2012 and was admitted to hospital for four nights. I was unsure whether the father intended to suggest a nexus between the mother’s alleged conduct and H’s re-admission to hospital. The father maintained that the mother had taken the child to the home of a friend on one occasion and to Coles supermarket on the way home from hospital, contrary to medical advice, during that two week period.
The mother’s version of these events was that the medical advice was not to keep H strictly confined to the house for 24 hours per day for two weeks. She said that his doctors “recommended that he stay at home to recover and not attend to his usual activities for a period of two weeks”. She said that he is a child who likes to be outdoors and that he was feeling down and upset for spending most of his time indoors”. According to the mother, H remained inside for the two week period apart from two very short trips outside the house “in order to lift his spirits”. I see nothing inappropriate in the mother’s care of H during this period. It seems to me that she successfully balanced his need to recuperate from the surgery with his emotional well-being.
The father alleged that the mother fails to give asthma medication to C on a regular basis. He relied in part upon statements allegedly made by C to that effect in support of this contention. He relied further on an email exchange between the parties (of item 13 of exhibit JH1 to father’s affidavit) in April 2012. The father was overseas at this time but he felt it necessary to email a reminder to the mother to obtain asthma medication for the Easter break. In the body of his affidavit of 16 August 2013 the father recounted that the mother emailed him “to say that she had not purchased the medication” and that she wrote “I guess I will see how it goes…”.
This extract from the mother’s email does not fairly represent the message which she conveyed to the father. Reference to item 13 of exhibit JH1 to the father’s affidavit reveals that what she wrote in fact was the following:
I couldn’t get out before 6pm so I couldn’t get it…I guess I will see how it goes, if I run out I can go to a GP for a script (emphasis added)
The mother did not say that she had run out of medication on that day. Her evidence was that the medication which she had lasted through the holiday break. In any event, it is obvious that she had a proper plan to address that contingency.
This incident is but one example of the father’s complaints of the mother’s failure to deal appropriately with the children’s asthma medication. He alleged that there were other occasions when the mother failed properly to administer asthma medication, which she either denied or explained satisfactorily.
The father alleged that he was told by the mother that she had no Ventolin inhaler for C for three days when she moved into her new premises in May 2012. He said that he collected an inhaler from the mother’s previous premises and took it to the mother. She did not deny this allegation. There was no evidence that C’s health was endangered during this three-day period or that the mother would have failed to obtain a puffer if he required Ventolin.
The father alleged that, on 13 October 2012, C told him that the mother failed to give him his “mask medicine” (Alvesco) for four nights. The mother maintained that she has given this medication to C except for one occasion when he fell asleep. She texted to the father:
It was actually only 1 night he missed, but yes I’ve run out.
She gave uncontradicted evidence that she ran out of C’s medication but purchased another Alvesco inhaler at a local chemist that night, which she administered as required to the child.
The father alleged that, on 19 February 2013, he asked the mother to arrange for C’s teacher for him to be given Ventolin at lunch time but he “later found out that [the mother] did not do this”. The father exhibited to his affidavit an exchange of emails relating to this issue (item 15 of exhibit JH1). It seems that the mother agreed with the father that C should be given Ventolin at lunch time but she did not take him to school the next day due to work pressures. Her mother took C to school but did not take the Ventolin puffer for his teacher. The mother emailed to the father on 21 February 2013 “I gave it to him 3 times per day, that is what I did”. It must therefore be that there was one day when C was not given Ventolin three times per day. There was no medical evidence that he required three doses of Ventolin per day.
The father maintained that Dr F, C’s asthma specialist, said to him on 6 June 2013: “Have you been giving [C] his Alvesco every day or have you gotten a bit slack?”. This comment caused the father to suspect that the mother was not giving the medication to C every night. The father gave no evidence of the surrounding conversation with Dr F.
Otherwise in support of this complaint, the father relied on alleged statements by C to the effect that the mother fails to give him asthma medication. He deposed to a conversation with C on 9 July 2013 as follows:
Me:“Does the nose medicine at Mummy’s house work properly, or does sometimes nothing come out?”
[Child C]:“Mummy doesn’t give me nose medicine.”
Me:“Mummy doesn’t give you this?” (holding up Avamys spray)
[Child C]:“No. She doesn’t give me my puffer medicine either."
Again, the father did not include the surrounding conversation in his affidavit.

The father maintained that C told him that the mother failed to give him Ventolin on 16 July 2013. He did not set out the terms of this conversation in direct speech in his affidavit.
On 5 July 2013 the father sent a text message to the mother which read:
The boys told me that you didn’t give them their brown puffer medicine or their nose medicine last night. Is there any reason for this?
The mother replied:
They did have it. And that is the last time I will answer that type of question thanks. (item 7 of exhibit JH1 to father’s affidavit affirmed 16 August 2013)
The mother denied that she has failed to administer the asthma medication in accordance with medical advice. I have no reason to doubt her evidence and instead to prefer the father’s reports of statements allegedly made by a young child. The mother gave clear evidence that she administers asthma medication as required to both children. I accept that she attends properly to the treatment of the children’s asthma.
The mother’s alleged difficulties with the children’s sleeping routine
The father complained that the mother allows the children to sleep in her bed, whereas he has succeeded in establishing a routine whereby they stay all night in their own beds. The mother denied that she experiences any difficulty with the children’s sleep patterns and claimed that they usually fall asleep between 7pm and 8pm.
There was no convincing evidence to the contrary. The mother’s parents began to stay with her in June 2013 and they occupy the children’s beds at present. This arrangement is temporary and arose when the landlord sold their rental accommodation in mid-2013. I see no basis for criticism of the mother’s care of the children on this account.
The mother’s alleged failure to provide proper food and a balanced diet for the children
In support of this complaint as to the adequacy of the mother’s care of the children, the father alleged that she has allowed them to eat chocolate for breakfast and hot cross buns, ice cream and smarties for dinner. He claimed that “the children have reported to me…and/or I have observed” them eating these foods.
In paragraph 71 of his affidavit of 16 August 2013, which was his only evidence in support of this complaint, the father detailed four precise dates and the name of a child in relation to these four specific allegations. It thus seems to me that he relied solely on statements of a five and three year old child in support of this complaint about the mother’s care of the children. She explained, entirely reasonably in my view, that she routinely provides a balanced diet but occasionally permits the children to have treats after they have eaten their meal.
The mother allowing the child H to wear a nappy and the child C to wear no underpants
The father complained that the mother allows H to wear nappies at three years of age, whereas he has succeeded in toilet training the child to the extent that he only wears a nappy at night. The mother explained that she uses nappies as a form of comfort for H, who became unsettled when the shared care arrangement started for him at the age of two years. She deposed that he has said to her several times “I am Mummy’s baby and I need a nappy”.
The father complained that the mother “refuses to dress [C] in underpants”. The mother explained that C has an “obsessive compulsive nature” and that one of his routines is to hide his underpants at her home. She deposed that she sought advice from Dr M, psychiatrist, that she should “slowly push the boundaries with [C]” and that she is doing so in relation to this issue.
The mother allowing the child C to use a dummy
The father complained that he saw C sucking a dummy while he watched a video at the mother’s home on 21 June 2013. He claimed to be “shocked” when he saw C with a dummy, which he immediately confiscated from the child. The father’s evidence was that the mother told him that both children are unsettled and that C “calms down” when he sucks a dummy.
The mother explained that C found an old dummy approximately six months ago and “played with it as a toy”. Her uncontradicted evidence was that the child “has only sucked it on occasions as a part of playing with it”. She deposed that she allowed him to use it on one occasion when he was anxious because the father was coming to collect him.
In his affidavit of 28 August 2013 the father deposed that the mother purchased another dummy for C, despite his insistence that she should not do so. He also complained in this affidavit that the mother continues to allow H to wear nappies on occasions.
It seems to me that the father’s complaints about C’s underpants and dummy use and H’s nappies do not amount to failures on the mother’s part to provide adequate and proper care for the children. In my view, she approaches their emotional needs sensitively and is prepared to make these compromises in that context.
The mother’s alleged failure to deliver the child C to school on time
The father contended that the mother regularly fails to deliver C to school in a timely manner. In support of this complaint he relied upon a statement allegedly made by C’s teacher on 17 July 2013:
There was a period in the middle of term 2 where [C] was being dropped late to school two or three times a week.
The father admitted that he dropped C late to school twice during term 2 2013 but, otherwise, he appeared to attribute blame to the mother. The father further relied upon the fact that the box for “sometimes” was ticked for “is punctual to lessons” in C’s semester 1 2013 school report.
The father did not set out full details of his conversation with C’s teacher which led to her alleged statement. Further, in the body of his affidavit he did not draw attention to the teacher’s generally favourable comments about C’s school performance which were as follows:
[C] has settled in to class and school routines well. He is making very good progress in all key learning areas. [C] is able to work well independently and is much more focussed in completing his work on time. He does need to learn how to organise his desk space and personal possessions. [C] takes pride in his work and is usually neatly presented. He is able to listen and follow instructions but tends to get distracted by events around him. [C] particularly enjoys building with Lego where he interacts well with his friendship groups. Keep up the good work [C].
The mother deposed that there was one occasion in 2013 where C arrived approximately 30 minutes late to school, which was when he was in the care of the father. Otherwise she claimed that “on some occasions [C] has been up to five minutes late when arriving to school in the morning”.
I do not consider that this complaint by the father amounts to a valid criticism of the mother’s care of the children. By his own admission, he took C to school late on one occasion for the sole reason that he “slept in”.
The mother’s alleged conduct on 7 August 2013
The father alleged that the mother failed to facilitate C’s return to him at 6pm on 7 August 2013. He deposed that the mother sent a text message which read “[C] is sick, sore throat and temperature” which he received on his way to her home to collect the children. When he arrived he saw C lying in the mother’s bed and cuddling her. The child said to the father “I want to stay at Mummy’s house”.
The father’s account of this incident continued in his affidavit of 16 August 2013 as follows:
99. While I was talking to [C], [the mother] was lying in bed cuddling him. [The mother] and I then had a conversation relevantly as follows:
Me:  “Have you given him Panadol?”
[The mother]:  “No.”
Me:  “Why don’t you give him some?”
[The mother]:  “I might abuse him. I’ll leave the drugs to you.”
Me:  “Why don’t you get out of the bed?”
[The mother:           “That won’t make any difference.”
Me:  “If you get out of bed, you can help get him dressed.”
[The mother]:          “This is what you wanted, … I’m cuddling him. I’ll do things my way and you do things your way.”
Me:“You need to facilitate the handover.”
[The mother]:          “I’m giving him cuddles. When children are sick, it’s normal for them to want their mothers. If you want to take him, you take him.”
I did not want to drag [C] out of [the mother’s] arms, so I was at a loss as to what to do.”
“103. I then went outside and moved my car from the driveway at the front entrance of [the mother’s] building to the visitor’s car park. While I was outside, I also telephoned my solicitor. By the time I came back to [the mother’s] flat, [C] had fallen asleep in [the mother’s] bed. I then had a conversation with [the mother] relevantly as follows:
Me:  “Can I take him home in the blanket?”
[The mother]:          “How can you think this is in the boys’ best interests?”
104.    I then tried to put [C’s] shirt on him, but [C] woke up and said, “I want to say goodbye to Mummy.” [C] then hugged [the mother] and said, “Goodbye, Mummy.” [The mother] did not respond. [C] repeated, “Goodbye, Mummy.” Again, [the mother] said nothing.
105.    I said to [the mother], “Why won’t you say goodbye? Just say goodbye.” [The mother] did not say anything. Then [C] said, “I love you, Mummy! to which [the mother] responded, “I love you, [C], soooooo much!” I then got [C] dressed while [the mother] was holding him. [The mother] did not assist me.
The mother gave this version of the incident in her affidavit of 15 August 2013:
22. On Wednesday, 7 August 2013, I spent time with the children between the hours of 3pm to 6pm. When I collected [C] from school, [C] said to me, “I am not feeling very well.” [C] also said, “Daddy doesn’t love me because when I hurt myself, he laughs and when I am sick, he doesn’t give me cuddles like you do.” I then said to [C], “Of course Daddy loves you [C] but let’s go home and you can lie on the lounge and watch some TV.” When we arrived home, I noticed [C] was developing a fever. His cheeks were red and he felt hot. This was at approximately 5pm. Since [the father] was due to pick him up in an hour’s time, I decided to let [the father] give [C] the Panadol.
23.      As soon as I said to [C] “Daddy will be here to pick you up soon” [C] started crying. He said to me, words to the effect: “I want to stay with you Mummy because I am sick. I want to sleep in Mummy’s bed.” [C] then ran into my room and got underneath the covers of my bed.
24.      When [the father] arrived to pick up [C], [C] refused to go with him. I recall [C] saying to [the father] in my presence, words to the effect: “I want to stay with Mummy. I am too sick to go with you Daddy.” [C] was very distressed. I was lying in my bed with [C] and [C] was continually cuddling me. I then heard [the father] raising his voice and saying to me, words to the effect: “[Mother’s name], get out of the bed. You have to facilitate [C] coming with me.” I then said, “[Father’s name], can’t you see that he needs a cuddle right now? You’ll have to wait. [C] is sick and he needs him Mother to cuddle him right now.”
At the time of this incident, there were no parenting orders in place but the father had unilaterally imposed a very limited regime of time for the children with the mother. She reluctantly gave an undertaking to return the children to the father at the end of agreed periods of time solely so that they could resume seeing her.
At all times on 7 August 2013 the father could have elected to allow C the comfort of his mother at a time when he was unwell. Rather, he chose forcibly to remove the child in accordance with an arrangement which he had imposed unilaterally. In my view, the father did not emerge blameless from this incident.
The mother’s alleged failure to clean the children’s teeth each night
The father expressed concerns about “whether [the mother] brushes the children’s teeth every night”. He based this complaint on an allegation that “[The mother] dug a child’s toothbrush out of a bag”, when he was at her new premises three nights after she moved in May 2012. He also relied on a statement allegedly made by C on 24 April 2013 to the effect that he “only sometimes brushes his teeth at [the mother’s] place” “because Mummy forgets”. Again, the father omitted from his affidavit the surrounding conversation. The mother deposed: “I brush the children’s teeth every night” and I have no reason to doubt this evidence.

SECTION 60CC CONSIDERATIONS

The father contended that the children will be exposed to an unacceptable risk of harm from being exposed to abuse or neglect if they spend overnight time with the mother. I have considered all of the father’s complaints about the mother’s care of the children, which I find lack substance either individually or cumulatively. I am not satisfied that the children would be placed at an unacceptable risk if they resume spending extended time and staying overnight with the mother. In my view, the father failed to establish such a risk despite the plethora of evidence which he adduced and his numerous complaints about the mother’s care of the children.
It is instructive to note that, on the father’s own evidence, the children lived with the mother for a continuous period of two weeks in late 2012/early 2013 while he was overseas. His willingness to leave them in her care for that length of time sits most uncomfortably with the complaints which he now raises which predate that time.
I wondered, in fact, whether any risk to these children’s well-being may have arisen from a sudden cessation in their spending substantial and significant time with their mother. I am of the view that the child C’s distress on 7 August 2013 was more likely than not to have stemmed from his separation from his mother and the fact that he was about to be taken from her at a time when he was unwell and needed her comfort.
Historically, it is highly probable that the mother was the primary carer for the children and that they now have a close, loving relationship with her. It is therefore practically inevitable in my view that they are missing her greatly at this time and suffering emotionally at being allowed only very limited time with her. The father permitted the children to spend time with the mother only as follows between 21 July 2013 and 15 August 2013.
a)Saturday, 27 July 2013 between the hours 9:39am and 4:30pm under [the father’s] and [Mr A’s] ([the father’s] brother) supervision.
b)Tuesday, 6 August 2013 between 3pm and 7pm (unsupervised)
c)Wednesday, 7 August 2013 between 3pm and 6pm (unsupervised)
d)Saturday, 10 August 2013 between 10am and 6pm (unsupervised)
e)Tuesday, 13 August 2013 between 3pm and 6pm (unsupervised)
f)Wednesday, 14 August 2013 between 3pm and 6pm (unsupervised)
In my view, certain of the mother’s responses to complaints by the father could indicate that she has a greater insight into the children’s emotional needs. The mother’s explanations in relation to the dummy, nappy and underpants complaints suggest to me that she is attuned to the boys’ emotional state, which leads her to make compromises. The father, on the other hand, imposes his own standards on both the children and the mother.
In my view, it is a matter of concern that the father apparently does not respect the mother’s privacy. He inspected her telephone messages for no valid reason in January 2012, then took photos of her phone and iPad. I can only imagine that he intended to use this material for some purpose of his own in the future. It seems to me that the father harboured an intention to secure an outcome whereby the children spend reduced time with the mother prior to the alleged incidents involving melatonin.
I have referred above to the very limited time which the father has permitted the children to spend with the mother since his unilateral retention of them on 21 July 2013. He did not facilitate their speaking to her on the evening of 23 July 2013 when she asked to talk to them in a text message sent at 7:13pm. The father replied: “I’m afraid I’m stuck at work preparing my affidavit for our court case. I will ring you with the boys in the morning”. In my view, the father’s priority on this occasion was his success in the litigation rather than the children’s relationship with their mother.
The father set out in item 25 of exhibit JH1 of the father’s affidavit affirmed 16 August 2013 the details of his proposals for the day-to-day care of the children, in the event that order are made in accordance with his Response To An Application In A Case. This proposal was as follows:
Proposed care schedule
MondaysMy parents look after [H] during the day
My parents pick up [C] at 3pm; I joint (sic) the children at my parents’ place for dinner at about 6:30pm
Tuesdays[Mr Z] looks after [H] during the day, taking him to playgroup in [Suburb Y], followed by [music class]
[Mr Z] drops [H] to [the mother] at 2:40pm; [the mother] picks up [C] from school at 3pm and spends time with the children before returning them to me at 6pm
Wednesdays [H] goes to preschool
[The mother] picks up the children at 3pm and spends time with them before returning them to me at 6pm
Thursdays[H] goes to preschool
My parents pick up the children at 4pm ([C] has drama after school); I join the children at my parents’ place for dinner at about 6:30pm
Fridays[H] goes to preschool
My parents pick up the children at 4pm ([C] has [sport] after school); I joint the children at my parents’ place for dinner at about 6pm
Saturdays[The mother] picks up the children at 10am and they spend time with her before returning to me at 6pm
SundaysI spend the day with the children
It is apparent that he will have no involvement in the care of the children during the day, other than on Sundays. That responsibility will fall to his brother and parents.

Equal Shared Parental Responsibility

These proceedings are interim in nature and, in my view, it is inappropriate to apply the presumption contained in section 61DA of the Act. Accordingly, the statutory position proscribed by section 61C will apply until the court is in a better position to consider whether the parties should have equal shared parental responsibility for the children. In my view, there are potentially issues of complexity involved in these proceedings. Accordingly, I do not need to consider whether the children should spend equal or substantial and significant time with each parent.

The Best Interests of the Children

The mother sought a reinstatement of the previous shared-care arrangement, subject to the removal of a changeover on weekends. The father sought that the children spend time with the mother for three hours each Tuesday and Wednesday afternoons and from 10:00am until 6:00pm on Saturdays. The mother’s uncontracted evidence was that her full-time employment as a legal professional prevents her from taking time off on two afternoons per week indefinitely.
The parties seem to have implemented a shared-care regime successfully, at least in a practical sense, for some fourteen months between May 2012 and July 2013. I appreciate that the mother contends that the arrangement was less than optimal for the children but, at least, they had the opportunity to spend substantial and significant time with each parent and their extended families.
It seems to me that the best I can do, at this stage, is to reinstate the essence of the previous shared-care arrangement forthwith. It seems appropriate to me that interim parenting arrangements are reconsidered when an expert report is available to the parties. I will order that the school holidays are shared equally between the parents and that the children spend time with each party on special occasions.

I certify that the preceding ninety five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on September 2013.

Associate:

Date: 10 September 2013

[2013] FamCA 779

10 September 2013

Key Legal Topics

Areas of Law

Civil Procedure

Negligence & Tort

Legal Concepts

Appeal

Causation

Damages

Duty of Care

Negligence

Standing