Bancroft & Grattan - [2009] FMCAfam 506

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BANCROFT & GRATTAN

[2009] FMCAfam 506

FAMILY LAW – Parenting – whether the father ought to have sole parental responsibility – whether mother should be able to attend the children’s school – whether father should be able to speak to mother’s treating psychiatrist and access her Medicare records – whether the father ought to be restrained from permitting the children to come into contact with a third party.

Family Law Act 1975 (Cth), ss.60CC (2), (3) & (4)

Applicant:

MR BANCROFT

Respondent:

MS GRATTAN

File Number:

PAC 7060 of 2007

Judgment of:

Henderson FM

Hearing dates:

12, 13 & 14 November 2008, 14 & 15 April 2009

Date of Last Submission:

15 April 2009

Delivered at:

Parramatta

Delivered on:

24 April 2009

REPRESENTATION

Counsel for the Applicant:

Ms Druitt

Solicitors for the Applicant:

Maria Voncina Solicitors

Counsel for the Respondent:

Mr Hodgson and Mr Gorham

Solicitors for the Respondent:

No solicitor on record

Counsel for the Independent Children’s Lawyer

Mr Perry

Solicitors for the Independent Children’s Lawyer

Legal Aid Commission of NSW

ORDERS

That children of the relationship, namely [X] in 2001 and [Y] born in 2003 (“the children”), live with the father.
That the father have sole parental responsibility for the children.
That the children spend time with the mother as follows:
(a)From 6.00pm on Friday until 5.00pm on Sunday, or until 5.00pm on Monday where the weekend is a long weekend, on each fourth weekend, such time spent to commence on the first weekend after the making of these Orders. The mother’s time with the children pursuant to this order is suspended during school holidays and recommences on fourth weekend of each term;
(b)For one half of each school holiday period at the end of Terms 1, 2, and 3 as agreed, but failing agreement, for the second half of such holiday period from 10.00am on the Sunday of the middle weekend to 5.00pm on the Sunday before the first day of the commencement of the new school Term.;
(c)During the school holidays at the end of Term 4, as follows:-
(i)In odd numbered years, from 10.00am on the 28 December, for a period of ten days, concluding at 5.00pm on the tenth day thereafter;
(ii)For a further seven day period commencing on the third Saturday in January and concluding at 5.00pm on the seventh day thereafter;
(iii)In even numbered years, from 10.00am 19 December, for a period of ten days, concluding at 5.00pm on the tenth day thereafter;
(iv)For a further seven day period commencing on the third Saturday in January concluding at 5.00pm on the seventh day thereafter.
(d)If Father’s Day falls on a weekend when the mother is to spend time with the children, the mother will not spend time with the children during that weekend;
(e)If Mother’s Day falls on a weekend when the mother is not to spend time with the children, the children will spend time with the mother from 5.00pm on Friday until 5.00pm on Sunday of that weekend;
(f)If the mother is in the [T] area, she is permitted to spend additional time with the children from 9.00am until 5.00pm on either a Saturday and or a Sunday on no more than ten days in total in any twelve month period, provided that she gives the father ten days notice in writing of her intention to spend such time with the children and the father may postpone such visits by one weekend on no more than three occasions in any one year.
The children be permitted to have telephone contact on not more than three occasions each week with the parent with whom they are not living or spending time with, at that time, and they will each provide the other with a landline telephone number for this purpose. Telephone contact will take place on Tuesdays, Thursdays and Saturdays between 5.30pm and 7.30pm.
The parties will meet at McDonalds Restaurant at [M] for all changeovers in relation to the children, unless otherwise agreed.
That the father be restrained from permitting Mr E to come into contact with the children. Contact being defined by a distance of no less than fifteen metres of the child or children and the father is restrained from permitting the children at the home of Mr E or from allowing Mr E to attend at the children’s home whenever the children are present.
That the mother be restrained from permitting the children to undergo any medical treatment, whilst the children are in her care, except in the case of a medical emergency and if such emergency occurs, the mother is to notify the father of her obtaining such treatment for the children within two hours of the treatment being obtained and provide him with the full name, address and telephone number of the medical practitioner providing the treatment and particulars of the child’s needs for same.
The father is to inform the mother of any emergency medical treatment or counselling which he obtains for the children within twenty four hours of such treatment or counselling being sought.
That the mother be restrained from permitting the children to undergo any counselling whilst the children are in her care.
That the father and mother be restrained from denigrating each other or permitting any other party to denigrate the children in the presence or hearing of the children.
That the father and mother be restrained from directly or indirectly discussing any aspect of these proceedings with the children or in the presence or hearing of the children.
That the father be restrained from permitting the children to operate or drive any farm machinery or motor vehicles for which a licence is required without adult supervision.
That the mother cause her treating psychiatrist to furnish an updating report to the father on or before 30 April of each year.
In the event that the mother is admitted to hospital at any time, the mother will, within seven days of her admission to hospital, cause the father to be advised of the following:
(a)the name of the institution at which she received treatment;
(b)the name of the treating practitioner at the time of the admission;
(c)the dates of admission and discharge.
The mother is to sign all documents necessary to cause the father to be able to obtain her Medicare listings for drug prescriptions within 7 days of a written request by the father.
That in relation to the schools attended by the children, the father shall forward to the mother, within forty eight hours of him receiving same, copies of each school report, school newsletter and any other report concerning the children’s progress at school, behavioural issues and any notification to parents of events affecting the children and events to which parents are normally invited, including but not limited to, parent and teacher nights sporting and social occasions.
Each party will notify the other within twenty four hours of any change of address or change of landline or mobile telephone numbers.
Each party is restrained from taking the children interstate without previously having provided the other party with twenty eight days notice in writing of their intention to visit interstate.
In the event the mother wishes to attend upon the children’s teachers or principal for the purpose of obtaining an update on the progress of either child or both children then the mother shall give 10 days notice in writing to the father (including by SMS or email) of her intention to attend, shall give details of the appointment she seeks and the father may or may not authorise the school to meet with the mother in his presence or in his absence. The father must give notice to the school and the mother in writing (including by SMS or email) of his decision not less than 3 days prior to the proposed appointment.
The mother shall not attend upon the school except as follows:
(a)To attend swimming carnival, athletics carnival, annual concerts or presentation ceremonies, education week functions, Easter hat parade or other special events to which members of the public are invited.
That the father be permitted to show a copy of the report of Dr Quadrio to any officer of DOCS, JIRT or the Police who are caused to attend upon him or the children or who embark upon any enquiry as to the welfare of the children prior to 15 April 2011 without further order of the court and the father may give a copy of Dr Quadrio’s report and Judgement made by this court on 24 April 2009 to the school.
The mother shall do all things and sign all documents so as to cause the children to be listed under the name of the father on his HCF family policy, being transferred from the mother’s policy.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAC 7060 of 2007

MR BANCROFT

Applicant

And

MS GRATTAN

Respondent

REASONS FOR JUDGMENT

The matter of Bancroft and Grattan concerned parenting arrangements for the parties’ children [X] born in 2001 and [Y] born in 2003 (“the children”).
The matter was part heard from 12, 13 and 14 November 2008 and was finalised on 14 and 15 April 2009.
I had also heard the matter on 19 November 2008 when the mother sought a stay of the interim orders I made on 14 November changing the children’s living arrangements from her care to the father’s care pending the completion of the hearing. The Judgment I delivered on 14 November 2008 has been published and provided to the parties.
At the continuation of the final hearing in April 2009 Ms Druitt of Counsel continued to represent the applicant father, Mr Perry of Counsel continued to represent the Independent Children’s Lawyer, and Mr Hodgson of Counsel represented the mother again on the

4^th day of the hearing. Mr Gorham of Counsel represented the mother on the 5^th and final day when the evidence was completed.
The parties had not filed any further material for the part heard hearing.
There were voluminous numbers of exhibits tendered at the hearing.
The father tendered 16 exhibits which were in the main subpoenaed documents detailing the mother extensive and lengthy hospital visits and medical records. These exhibits included the mother’s Medicare patient summary forms, documents from the Royal Prince Alfred Hospital, Gosford Hospital, North Gosford Hospital, notes of Dr S her treating psychiatrist, records from Absolute Medical Services, her local General Practitioner, and Dr W a psychiatrist she saw some time ago.
The father’s exhibits also included the children’s school records from [N] School which school they have attended since coming into their father’s care.
There had already been voluminous documents tendered on the first three days of the hearing in November 2008.
Dr Quadrio’s report was tendered at the first stage of the hearing in November 2008 and marked Court Exhibit 1. In addition a report of Dr Christopher Lennings who the father took the boys to see in January 2008 was part of the evidence I heard in November 2008.
On 14 November 2008 I took the unusual step of changing the children’s long term care arrangements pending the completion of the hearing. These boys had always lived with their mother and had spent time with their father. I changed that long standing care arrangement. The step was unusual as the final hearing had not been completed and, most importantly, the expert evidence upon which I relied very heavily being the reports of Dr Quadrio and Dr Lennings had not yet been tested.
The mother filed an appeal from my interim decision and sought a stay of the orders on 19 February 2009, which stay I refused.
The matter came before me again on 23 February 2009 when the mother objected to the clinical notes of her treating psychiatrist, Dr S, being released for inspection by the parties and to the Court expert Dr Quadrio. The mother’s application was unsuccessful and the documents were ultimately released.
At the resumption of the hearing on 14 April 2009 the mother agreed that the boys would continue to live with their father.
The mother now seeks orders that the boys live with their father, that the parents have equal shared parental responsibility for boys and that the boys spend time with her by travelling to her home in [O] on one weekend in three, half of the holiday time and at other times by agreement. This decision came at some significant emotional cost to the mother.
The mother, along with the Independent Children’s Lawyer, sought an injunction restraining the father from permitting the boys to come into contact with Mr E. [X] had disclosed some time ago that Mr E “stuck his doodle up his bum”.
Ultimately the mother agreed that the boys travel only one weekend in four from [T], where they live with their father, to [O]. It was agreed between the parents that the mother could come to the [T] area to spend time with the boys on other occasions by agreement. The mother came to that decision as she accepted the Independent Children’ Lawyers submission that the boys had told her they were finding the travel to [O] from [T] too long every third week.
The father sought sole parental responsibility, which was ultimately the real issue for determination. He sought an order that the mother provide him with a report from her treating psychiatrist, Dr S, each year. The mother ultimately agreed to this proposition but not that the father be able to speak to Dr S as well. The father sought orders that he be able to access the mother’s Medicare records to assess her prescription drug use and consumption. The mother’s heavy use of pain killers, and in particular morphine derivative pain killers such as Pethidine and OxyContin and the like, are of real concern in this matter.
The hearing changed substantially in the issues to be determined from November 2008 when there was still a significant contest between the parties regarding where the children should live, to the final dates in April 2009 when the contest was the time the children should spend with their mother, the type of injunctions and restraints on the mother’s behaviour taking the children to hospitals, counsellors and the like, the father accessing her medical records in the future and most significantly sole parental responsibility to the father.
Initially, at the first hearing, much was made by the mother’s then Counsel that Dr Quadrio’s report would be tested, and that the mother’s case was that her report was based upon factual inaccuracies, clinical misdiagnosis and would be a report that ultimately I could not rely upon. As the matter turned out the mother did not test Dr Quadrio’s evidence at all, and that report, its opinions and recommendations came into evidence unscathed.
Dr Quadrio’s report is clear and direct in its recommendations, clinical and medical findings concerning the mother’s health, and the children’s attachment. Her recommendations were that the children should live with their father and have closely monitored time with their mother.
The short facts of the matter are similar to that at the interim hearing. The parties commenced cohabitation in January 2000 and separated in April 2003. They cohabited for a short period of time. [Y] was a baby when the parties separated.
The matter first came before me in January 2008. The father was the applicant on that occasion. He had failed to return the children to the mother on 3 January 2008 in accordance with an agreement they had reached. The agreement was that in October 2007 [X] was to come into his father’s full time care, be enrolled at the [N] School for the remainder of 2007 and the first term of 2008, that [Y] would spend the holidays with his brother and his father, both boys would then have a holiday with their mother, and then [X] would return to his father’s care. Thus the boys would be separated for the first term of 2008.
The agreement the parties reached that [X] would return to his father’s care to commence school in late January 2008 did not eventuate because of the father’s conduct in not adhering to the agreement to return [X] to his mother for he and [Y] to spend part of the school holidays together. I was, and am still, critical of the father’s conduct at this time. [X] was returned to his mother’s full time care and I listed the matter for the final hearing. I ordered the children to be returned to their mother by 12 January 2008, and that the then existing orders continue.
It was clear, however, in January 2008 that the father had real concerns for his sons’ wellbeing in their mother’s care and that the issues he raised required determination.
The medical evidence in this matter looms large because there is no doubt that the mother has had significant psychological, mental and physical ill health issues for most of her life. Her youth and young adulthood was, if one believes her version of events, absolutely traumatic. She was raped and sexually abused. She gives a story of being sexually abused with barbed wire. She has been badly treated by adults when a young teenager and she believes the father was violent towards her during the relationship. She felt alone and very afraid whilst living in [T]. She made no official complaints of the father’s violence towards her because she could not go to the police as the paternal grandfather was an Inspector of Police in [T] and her belief was that the police would not assist her. The mother also claims the father has a significant alcohol problem and is a drunk.
The mother has a long standing injury to her right arm which causes her intense pain on a random basis, resulting in hospitalisations for treatment and use of strong morphine based pain killing drugs.
The mother has had significant psychiatric treatment and hospitalisation for mental health issues including suicide attempts and is currently on anti-depressants.
Dr Quadrio said at page 67 paragraph 11 of her report:
The mother’s pattern of abnormal illness behaviour poses a threat to the psychological development of the children.
That succinctly states what the real problem is in this matter: The mother’s state of health and the impact of that on her parenting and thus the impact on the children.
The mother has such strong and random episodes of pain in her right arm that she has been a long term user of opiates at such significant levels that [Y] was born opiate dependant. The mother has had a flare up of this bad pain again in June/July last year, resulting in hospitalisation. As properly submitted to me by Ms Druitt, that recent event was not in any of the mother’s material. It only came out from the subpoenaed material. The mother has significant pain in her back, she is unwell, she has been on anti-depressants and the traumatic experiences she says she had in her young adulthood have clearly impacted upon her mental health and her proper adult functioning.
Dr Quadrio is the only expert who has seen all the family together, the children and the parents, and the only expert who has read all of the mother’s treating specialists’ notes and reports, thoroughly reviewed the notes of Gosford Hospital, North Gosford Hospital and all the mother’s hospitalisations, as well as the subpoenaed material from the children’s schools at [O] and [N], read all the children’s and mother’s medical histories and various counselling notes.
No other expert medical witness in this matter, including the mother’s own psychiatrist Dr S, has been in this unique position.
Dr Lennings did not interview the mother however he did observe and interview the children.
As the mother’s treating psychiatrist, Dr S has only heard the mother’s side of the story and has accepted her version of events. Dr S’s reports do not assist me forensically where there is a factual dispute between the parents. I cannot rely upon Dr S’s report to support the mother’s various assertions such as that the father was violent to her during the relationship.

It is only Dr Quadrio that has seen all the family together and has engaged in a forensic assessment of assertions and allegations in this matter. Her thorough reading of all the subpoenaed material gives further weight to her opinion and conclusions particularly in contested issues.
Dr Quadrio goes through a history of the mother’s complaints and injuries and hospitalisations from about March 2003 to date.
Dr Quadrio read notes prepared by the maternal grandmother which read, in part, that from 1981 Ms Grattan has had problems with mental health and her health in general. From the evidence tendered by the father those problems have continued in varying degrees since that time. Unfortunately I did not detect much improvement in the mother’s very difficult mental, physical and psychological health issues from 1981 to date. The mother continues to require strong pain medication and hospitalisations on an ongoing and random basis.
Dr S, the mother’s psychiatrist, prepared a report for this hearing which was attached to her affidavit filed 28 October 2008. Dr S has been the mother’s psychiatrist since 2005. Reading from her report at paragraph 25 Dr S says:
Over the three years Ms Grattan has seen me, she has improved to the stage where she no longer needs strong analgesics and has worked and studied for considerable lengths of time, when well.
That was shown to be an incorrect statement. It is clear from the subpoena material from [E] University that the mother had not worked and studied for a considerable period of time. The mother studied and worked for a short period of time. The mother’s history to Dr S was wrong. Dr S went on, in paragraph 25, to say:
She has suffered relapses when her arm has been injured and when the air conditioning at work triggered pain. She has also relapsed when experiencing triggers; especially she has feared her sons have been subjected to abuse as she was, both in her childhood and in her relationship with Mr Bancroft. Her hyperarousal and hypervigilance have caused her to check her sons’ health frequently, but she has been able to document reasons for visits by [X] and [Y] to GPs and paediatric specialists.
These children have been to the doctor on many occasions. They have been assessed by psychologists, occupational therapists, and paediatricians frequently in their young lives. The mother seizes upon anything that the children may suffer from medically and says they do so suffer to all and sundry. For example, in a report on [X] some years ago to which the father was not privy, a reference is made to [X] perhaps exhibiting some behaviours akin to ADHD. Since that time the mother has told doctors, school teachers, psychologists and others that [X] has ADHD. The mother still believes today [X] has ADHD.
A further example is that [X] was born with a horseshoe kidney. There is no evidence produced which shows this has ever caused the child one days sickness, pain or discomfort. Yet the mother brings this up at every medical appointment, school and psychologists meeting and brought it up with Dr Quadrio as an ongoing problem for the child when it is not.
[Y] was born with some minor malformation of his feet which has been operated on and treated appropriately. There is no evidence that this has ever caused him any difficulty in walking, running or playing. Yet the mother refers to this problem with his doctors, school teachers, psychologists and Dr Quadrio and believes he now has a form of juvenile arthritis. This was a mere possibility floated by [Y]’s treating specialist to the mother some years ago. The mother has turned this possibility into a day to day reality. The mother asked [Y] at the interview with Dr Quadrio if his knees were sore when there was no indication of any pain as observed by Dr Quadrio. The grandmother joined in this enquiry also. [Y] said “No”.
The mother says in her material that her children suffer from these illness and disabilities when the objective medical evidence is to the contrary. The objective evidence is that they are healthy, happy, reasonably well adjusted children.
Dr S says this:
She did fabricate her story of “breast cancer”, but this was to escape from a situation of extreme violence when she felt unable to ask for help from the police.
The mother fabricated a story after separation that she had breast cancer. She shaved her head to support her story of undergoing chemotherapy. The mother, on her own evidence, admitted she lied to everyone in the town including her doctors when she said she had breast cancer and was going to die.
The mother underwent treatment for this bizarre behaviour. At the time of this treatment she told her then health professionals that the father was very supportive. There was no mention at that time of the father being violent. This is in stark contrast to her story to Dr S.
Any mention of violence or extreme violence perpetrated by the father comes from the mother. Those allegations are not supported in any of the subpoenaed material or in any objective evidence.
The mother asserted the boys think she is going to die and that this is because of what the father says to them. The fabrication of the story of breast cancer no doubt put into these young children’s minds the fear that their mother may die. Seeing their mother being taken to hospital in an ambulance on several occasions, the last being in July 2008, would also cement this ghastly thought in their minds.
There is a theme properly appreciated by the children that their mother may die. This is not because of anything their father has said but from what they have observed themselves and heard mention of. The mother laid blame for these thoughts at the at the feet of the father. She cannot see that it is her behaviour and not his that has caused the boys to think so.
Dr S goes on to say, still at paragraph 25:
Her dissociative episodes have given her lapses in memory but are transient and she has always ensured the safety of her sons when in her care, making arrangements for her mother, friends or Mr N to care for them if she has been unwell.
The mother has not asked the father to care for the children when he is clearly available. The mother has to rely on other people to care for her children.
Her seizures only occurred when she was taking multiple (prescribed) medications. In my opinion, Ms Grattan has improved over the three years I have seen her…. In my opinion, she is quite capable of caring for her sons in a responsible way.
I disagree with Dr S’s report. That is not what the evidence shows. The mother is extremely unwell and was hospitalised in July 2008 with pain and injury to her arm, and also having had a seizure. Her health has not improved and it has had a negative impact upon her children as it has, of necessity, negatively impacted upon her parenting capacity. The pain alone must have done so. This negative impact on the children is not as such the mother’s fault but is as a consequence of her complex medical and psychological ill health episodes.
It was an important matter in my interim decision that that the mother had not told the Court of her hospitalisation in July 2008. This significant event was left out of her affidavit.
When the mother was pressed on this omission in the resumed hearing in April 2009 she said she had told her lawyer about her hospitalisation but that he had not put it in her affidavit. The mother swore the affidavit. She must have known these events were missing. Her lawyer could not know it had happened if she had not told him. It was up to the mother to make this event known to the Court and she failed to do it. I was not satisfied as to her explanation.
The mother’s memory during her cross-examination was at times vague and yet at times very specific. I formed the view that the mother remembered what she believed would assist her and could not remember what would not assist her. The mother said that her psychiatrist Dr S had told her that her memory would lapse and she would not be able to remember things that were traumatic or difficult or painful to her. When she was asked to explain the words painful to her she said “This whole episode, this whole thing of my children being taken away from me is painful.”
From the mother’s own lips came the very evidence that supported what I had observed, what Dr Quadrio observed, what had been observed by doctors at North Gosford and Gosford Hospitals. The mother is not a witness who can be relied upon to give an accurate history. The mother’s illness is such that her memory is fallible.
Thus it must be the father’s version of events I rely upon where there is a contest as the mother, on her own evidence, has said she cannot remember matters which are painful to her. I accept that her children no longer being in her primary care has been painful for her.
The hospital records show that when the mother was taken to hospital in July 2008 she was treated with Ketamine, Fentanyl, Keflex, Clonidine, and Lignocaine. Her hands were swollen, she did not think she had cellulitis, antibiotics were discontinued and the diagnosis of complex regional pain syndrome type one was confirmed. She was discharged on Pregabalin and Duloxetine 10 to 30 milligrams a day.
The mother had a severe reoccurrence of pain on 8 October 2008. She said she had been doing increased activity on the farm driving round and this is what was causing her pain. She was stressed due to impending dental surgery for her son. The mother did not put any of this in her affidavit. The mother left it up to the father to find out what actually had happened by issuing subpoenas which is an expensive and time consuming task.
The mother had been referred to a pain clinic but has not followed this referral up since July 2008. Her evidence was that she has put her name on the waiting list but it has been over six months since anybody has contacted her. Had the mother really wanted to wean herself off her strong pain medication including opiates it is surprising that she did not follow up with the pain clinic.
However she has done nothing to assist herself in that regard. This same conclusion was reached by Dr H who saw the mother in 2006/2007. At paragraph 4 of her report which is attached to her affidavit filed 17 October 2008, Dr H said :
…Ms Grattan has had numerous trials of therapy with some success but repetitive relapses. When I took over her care she was managing quite well on a regime of Pethidine when she had a flare up but did seem to become dependant on medication and it wasn’t controlling her pain adequately and she had an exacerbation. Trials under my care consisted of weaning her off Pethidine and onto Tramadol. Oxycodone was also trialled but with no success.
The mother has taken few steps to assist her to manage her pain in a way other than by taking extremely addictive and strong pain killers.
The evidence is clear that in 2007 [X] was experiencing significant behavioural problems whilst in his mother’s care. This was why the parents agreed to trial him living with his father for a period in late 2007 and early 2008.
Ms Druitt asked the mother in the April 2009 proceedings whether she had noticed a change in [X]’s behaviour from when he attended [O] school to the present where he attends [N] School. The mother said “No, there’s been no change, he’s basically the same child as he was.” On an examination of the exhibits and school records nothing could be further from the truth.
Mother’s Exhibit 1 is a letter from the [O] School dated

1 August 2008
. It says in part:
Dear Ms Grattan,
I am writing to make you aware that [X] experiencing difficulty with his behaviour. Recent incidents include:
· Kicking
· Fighting.
School personnel continue to work with [X] to assist him to improve his behaviour. Due to recent incidents [X]’s behaviour is now being monitored. If this kind of behaviour continues specific consequences will be invoked and these include suspension and exclusion from extra-curricular activities such as excursions.
[X] had been saying he wanted to live with his father for some time from 2007 and thus the agreement between he parents was made for this to occur. It did not occur due to my orders which arose as a consequence of the father’s behaviour in January 2008.
[X] went into his father’s care in October 2007, and the [N] School records of 5 February 2008 show he settled in extremely well:
For the brief time [X] was a student in my class at [N] School he presented as a pleasant well-mannered child who was eager to please. Occasionally he needed reminding to pay attention as sometimes he was a little restless during activities. However, on the rare occasions when [X] needed to be spoken to, he always did as he was asked. [X]’s behaviour certainly appeared to be within normal limits.
He was reading at Level 16 in reading groups which is well within normal limits for his age. Written work appeared to nee some attention, as did his number.
[X] appeared to make friends quickly and did not appear to be socially isolated. He did not have any serious playground or classroom issues while he was attending this school.
This is a completely different child to that described in the [O] school records for the same year.
Both boys have been at [N] School since I made orders in November 2008. [Y] appears to be quite a talented child. His school reports show he is reading with 94 per cent accuracy. He does a lot of reading, makes good use of sounds and enjoys books. He can spell well, he writes well, his handwriting is neat, and he is very good at maths. He needed a bit of work on his maths during the year and he has improved radically. He has obtained a bronze award as he achieved ten class stars and he is due to get another bronze award because of completion of homework each week. Any parent would be thrilled to read a report such as this of their child’s progress
[X] too is doing well at school. His playground behaviour is good as is his classroom behaviour. Although he does not appear to be as intellectually talented as [Y] he is working to his capacity and there is not one problem noted by the school in relation to either boy.
The mother wanted to speak to the school and the children’s teachers and principal concerning her sons’ progress. This was appropriate and she made an appointment in February 2009. It came out at the hearing that the school will not see the mother unless there are two teachers present. They will not permit teachers to be on their own with the mother. That is of concern. The mother could not see it was a concern but it is of concern to the Court.
There is a report of the meeting on 10 February 2009 at [N] School, at which Mr N the mother’s partner attended:
Ms Grattan explained that the main reason for the meeting was to meet the teachers. She acknowledged that it was early in the school year, and said she would find out more about the boys’ progress and would know more in a few months time.
Ms C, [Y]’s teacher, spoke of [Y]’s progress:
·    …As is only week 3 on-going assessments will take place throughout the term.
·    Ms Grattan asked about the swimming carnival and why a notification of this event was not forwarded on to her. [name omitted] explained that a note wen home with the boy’s to their father.
·    Ms Grattan enquired about reading groups and parental help. Ms C explained that she did not require helpers as yet due to it being week 3.
·    Ms Grattan asked about [Y]’s handwriting and told the meeting that he had seen an occupational therapist. She referred Ms C to his record card which houses his report.
·    Ms Grattan also mentioned [Y] is prone to sore feet.
·    [Y] has told his mother he “Loves his teacher”.
[Y]’s handwriting is perfectly acceptable. According to his teachers.
· Working on neatness and slowing down.
· Working on correct formation.
Yet despite this advice from his teachers the mother brings forward a report in which mention is made by an occupational therapist that [Y] has problems with handwriting. He was quite young at the date of that report. She reports [Y] is prone to sore feet when not one mention has been made of this by the teachers or the child. The mother could not explain why she brought up these matters from the past when the facts were they were not an issue now.
The notes of the meeting with the boy’s school in relation to [X]’s progress are as follows:
·    Ms Grattan spoke of [X]’s background and listed all of his medical problems.
·    Ms Grattan said she had a meeting with his teacher last year and discussed [X]’s behaviour; she spoke of her delight in his improvement this year in this area.
·    Mr N spoke of [X]’s personality.
·    [X] told his mother his teacher is “Just the best”.
Despite having said to the teacher she was delighted in her son’s improvement this year, when asked in cross-examination by Ms Druitt “is there a difference with [X] this year” she said “no”, that he was the same. That was an out and out falsehood.
What is of greatest concern is that the mother listed all of [X]’s medical issues. What are [X]’s medical issues? There are none that I can discern from the medical evidence.
When the mother asked about this she said “His horseshoe kidney, ADHD, behavioural difficulties and the like.” Why would the mother bring up these matters from the past when they clearly are non existent in the present? Why would the mother do that to her son? Why would the mother present the child to the school as having difficulties and problems which have not been proven on any objective evidence to have been an ongoing problem or issue in the past and are non existent now?
Both Dr Quadrio and Dr Lennings said that [X] was not a child who presented to them with ADHD behaviours. [X]’s ADHD diagnosis is a real bone of contention between the parents. Dr Quadrio’s evidence and Dr Lennings’ evidence on this issue has gone into evidence intact and I find on that uncontroverted evidence that [X] does not suffer from ADHD. Further I direct the school be provided with a copy of

Dr Quadrio’s report so that they know he does not suffer from ADHD. [X] is a regular, happy, healthy eight year old child performing to his best at school.
The children’s current school reports paint a picture of very happy children progressing very well. I am most concerned that the mother would try to interfere with that picture by putting forward problems her children may have had in the past but which have no affect on them now.
The mother had an opportunity to pull back from behaviour which I clearly set out in my 14 November 2008 judgement was causing the Court and the father concern. That being that the mother was over medicating, over analysing and over medically servicing the children at a physical and emotional level. The mother’s concerning behaviour has continued.
The mother cannot change her behaviour. This is unfortunate as the mother does love her children and does not mean to cause them harm in any way. This almost obsession with medical and emotional problems is very strongly ingrained in her psyche. She said she believed by telling the teachers all the problems the children have had since birth she was acting in their best interest. I have formed the contrary view, that to do so is not acting in their best interest but is fulfilling a need of the mother’s for constant medical intervention.
These boys have been exposed to a form of abuse in their mother’s care albeit unintentional, albeit with no other agenda other than her belief it is in their best interest, in the form of medical over servicing, and the mother believing the children have illnesses which they do not have or are no longer of relevance.
Nothing was presented to me at the resumption of the hearing on

14 and 15 April to dissuade me from the position that Dr Quadrio took in relation to the mother’s significant illness and the negative impact of those illnesses upon her children, which is that:
The mother’s pattern of abnormal illness behaviour poses a threat to the psychological development of the children…
…Whatever diagnostic term is used, it is evident that her parenting capacity is seriously limited.

It is evident that her parenting capacity has been severely limited. The limitation is both physical in terms of her severe pain episodes and fits, her opiate dependence and other strong pain dependence, and her psychological and emotional capacity to provide for the needs of the children, or see their needs in a child focussed way when that is different to her needs. The mother has spent a significant period of time caring for herself, and I make no criticism of her for that. It is just the way it is.
The primary issues in this case comes down to whether I do as the father requests and rebut the presumption of equal shared parental responsibility and assign that responsibility solely to him, limit the mother’s attendance at the children’s school because of concerns I have raised having regard to her behaviour at the school this year, permit the father to speak directly to Dr S in relation to the mother’s progress (the mother having agreed to provide a yearly report from Dr S to the father) and permit the father to access the mother’s Medicare records in relation to her drug use and prescriptions
From the mother point of view she seeks an order that the father be injuncted from permitting Mr E to come into contact with the children having regard to disclosures by [X] of Mr E sticking his doodle up his bum some years ago.
Going to the issue of attending the children’s school. I was most concerned by the mother’s evidence of her behaviour and attendance at the children’s school regarding what she told the principal were her children’s problems and that the school must have two teachers in attendance with the mother. Father’s Exhibit 16 and Father’s Exhibit 3 show that the children have settled well into school. [X]’s behaviour is particularly pleasing from what it was at [O] last year. [Y] has never experienced any behavioural problems it would seem.
[X] has improved in spelling in term one from an initial score of nine out of 20 in Week 2, to 16 out of 20 in Week 10. That is a pleasing improvement in a short period. His Listening Comprehension Results were initially eight out of ten, which was impressive, and is now 100 per cent in Week 9 of Term 1.
These children have improved in every level of their schooling and [X] in his behaviour whilst in their father’s care.
Mr N, the mother’s partner, is a support to her and I make no criticism of Mr N. However, he is clearly embroiled in the mother’s psychosis and the mother’s illnesses and her understanding of her children’s illnesses and cannot see clearly that their needs are different to the mother’s needs. I do not know that I will ever dissuade the mother from her view that [X] has ADHD. I wish I could. I do not think I will ever dissuade the mother that [Y] does not suffer from juvenile rheumatics and has no pain in his knees or feet. I wish I could. But I do not think I will. Nor will I dissuade her that [X]’s horseshoe kidney presents him no difficulty or problem at all in any way, shape or form.
I was most concerned that the mother could not concede that [X]’s behaviour is significantly improved at [N] School from that at [O] School. That causes me a real problem. The mother has no ability to see reality from what she believes is the truth. Her saying to the teachers she is delighted in his improvement and then telling Ms Druitt his behaviour is the same fits into that same category: lack of insight or ability to see matters from the children’s point of view or outright untruths.
As Dr Lennings said at paragraph 20 of his report:
On the whole it seems that these children are essentially normal children who have no major problems.
Parents would be happy to hear that, but I do not think that is the mother’s position.
In Dr Quadrio’s report at page 30 she reports the mother saying she had concerns because [X]:
said he is hearing voices in his head to be bad to everyone and he got a knife and didn’t remember afterwards.
At Page 34 the mother describes her life:
There was lots of violence, lots of rape, lots of abortions.
That is how the mother described her life. She agreed she made up the cancer but said it was so her husband would stop hitting her.
The mother told Dr Quadrio she was raped:
at 15 I got raped and someone was paid to kill me and I was hung from a tree. I don’t know who raped me at Maitland it was at a rodeo. I didn’t tell anyone.
When she was in the United States a woman threatened her sexually, and I think she was raped as well. The mother was weeping when she was telling Dr Quadrio those events, as she did when pressed on them in Court, but they really did not assist in this matter and that evidence was not taken any further.
The mother said to Dr Quadrio:
With [Mr Bancroft] it [sex] was always forced. Now, with [Mr N], it’s different.
Dr Quadrio’s observation was that the children were unsettled and disruptive when they were with their mother. This is the mother’s description of [X]:
[X] was born six weeks early and had “wet lungs”…He had a lot of middle ear infections; glue ear; and a lot of fevers. He had grommets and then tonsils and adenoids out…
Then [X] had the problem with a horseshoe kidney… He had a lot of reflux.
Dr Quadrio said she saw little attention seeking of the boys from their mother which is most unusual given she was their primary carer and had been up until that point.
The mother said she had a terrible pregnancy with [Y], she was on methadone and Mr Bancroft effectively dumped her and went away for the [omitted] film to earn income. The mother was on the farm and the father was not around. The mother said to Dr Quadrio that Mr Bancroft just left her at home and went off around Australia:
I was pregnant and driving the bobcat and looking after [X] and building a new house and he’s off around Australia sleeping with whomever he likes and from then on I didn’t really recover.
The mother told Dr Quadrio that [Y]’s birth was “horrific”. They were the mother’s words. The mother reported:
[Y] looked like he had club feet: ‘he had soft tissue and cartilage growing out of his foot’. Later he had an operation. He has ‘necrosis of the navicular bone and fluid on the knee’.
The mother asked [Y] if his knees hurt at the interview. He replied, emphatically, “no”.
The mother became very distressed with Dr Quadrio when talking about the domestic violence, she said, was perpetrated against her at the hands of the father. That distress may be because it simply is not true.
The mother believes the father is an alcoholic and has been caught many times driving under the influence and charged with malicious damage and grievous bodily harm:
but it’s not on his police records, it’s because of [name omitted] [the paternal grandfather]. He’s been able to fix it up.
There is no evidence to support that position.
She still had a painful arm, she has had a brain injury, sore back and Dr Quadrio said the mother showed and demonstrated to her a preoccupied style of parenting. That is preoccupied with herself not the children.
The mother told Dr Quadrio at page 41:
[Y] has trouble sleeping because of pain in the knee; he can’t fall off to sleep.
That view is not supported at all on the evidence.
In relation to the allegations of sexual abuse of [X] and the risk of same to [Y] from Mr E, that is a matter I will have regard to. It is a matter of concern to the Court and the Independent Children’s Lawyer.
The mother did admit in her cross-examination that [X] was a child that may exaggerate things and he may have exaggerated events such as his dad kicking him up the bum, which loomed large in Dr Quadrio’s report. I found that incident to be nothing more than the father pushing the child away with his foot. The mother agreed that she may have exaggerated what [X] said.
The mother has told Dr Quadrio there had been consideration from her medical practitioners of her arm being amputated. That was at page 42. Dr Quadrio could see no physical or physiological reason for such a drastic event being even considered. Dr Quadrio observed the mother had no difficulty using her arm or lifting her arm above her head, or holding the children.
[Y] was hospitalised with meningitis some few years ago. I accept the paternal grandfather’s evidence on this point which is that the mother rang and told the grandparents and the father that [Y] was near death, he was dying and they need to rush to the hospital. They rushed to the hospital to find him sitting up in his hospital bed almost recovered as healthy young children miraculously do. Again, the mother exaggerated [Y] illness and she cannot be relied upon to be an accurate reporter of what is actually going on with the children. The grandfather said, “I accept he had meningitis but it wasn’t as serious as she made it out to be.”
There is considerable evidence as Dr Quadrio opined in page 61 of her report and in the subpoena material of the mother’s significant and complex pattern of illnesses form her admissions to hospital for suicide, depression, pain in her arm, pethidine addiction, false reporting of breast cancer and of [Y] being born dependant on opiates.

Dr Quadrio concluded that the mother tends to pathologise the children and to involve them in multiple assessments:
In effect this is psychological abuse but it is unlikely that she intends this or understands it to be abusive.
That is the sad part in this case. I find that statement to be correct. There are no bad intentions by the mother or intention to harm her children. It is just as a consequence of the mother’s illness that the children are harmed.
The mother demonstrated to me clearly in giving her evidence that she does not understand that constantly repeating every illness, or possible illness, her children may have had had, or could possibly have, to anyone she can is not an action in their best interest. She does not understand that. She thinks it is in their best interests. This is clearly demonstrated with her consistent reporting of [X]’s ADHD and needing anger management, and [Y]’s juvenile arthritis. Neither of those conditions was apparent to Dr Quadrio or Dr Lennings.
As Dr Quadrio says, the mother has an entrenched pattern of marked preoccupation with illness, and in these circumstances the children clearly have been exposed to medical over servicing. At page 65 she says:
Ms Grattan clearly has serious psychiatric disturbance which is particularly manifest in abnormal illnesses behaviour, whereby she exaggerates and possibly feigns physical symptoms or perhaps develops those symptoms as a manifestation of psychological disturbance.
The subpoena material all point to the mother’s dependence on opiates and drugs to ease her pain and her unwillingness to accept her addiction when pointed out to her by at least two Registrars in 2008. Both Registrars independently said they would not further treat her unless she underwent pain management treatment.
Upon being told this the mother discharged herself from these hospitals and obtained her pain relief elsewhere. The mother is a completely unreliable historian for herself and her children. She exaggerates any medical or any minor behaviour difficulties, says one thing to one person and another thing to someone else. She told [N] School she was delighted with [X]’s progress and told the Court he was as he had been at [O].
Thus, to cause the father to negotiate with the mother on important issues such as the children’s medical treatment and education would, in my view, be to subject the children to further abuse at their mother’s hands. An equal shared parental responsibility order is not in this case an order in the children’s best interests and is contra-indicated on the weight of evidence.
The father must be able to make these decisions for his children unhindered by the mother’s psychosis and psychiatric difficulties on these very matters. The father must inform the mother of the decisions he has made but he must make those decisions unhindered and without having to negotiate with the mother. He could not get a straight answer from her, he would not know upon what she based her opinion in any event and it would place the father under significant pressure. To order anything other than sole parental responsibility to the father would place these children at real risk in the future.
Dr Quadrio says the mother must continue her treatment with Dr S, and everyone agrees that is the case. The father needs a yearly report from Dr S as to the mother’s progress, treatment, and her current drug regime and information as to whether she is complying with the regime put in place by Dr S and consistently seeing Dr S. The father needs to be able to access the mother’s medical records from Medicare to find out what drugs she is taking, because what she takes and what she tells doctors she takes, have been shown in the subpoena material to be at odds with each other on many occasions. The father needs to check what Dr S tells him in a report with what the Medicare records tell him the mother has been taking by way of prescription, because they have been very divergent in the past.
I do not see there is any need for the father to speak to Dr S, and I understand that the mother has a deal of confidence, understandably, in Dr S, and a strong relationship with her, and I would be most concerned to in any way fracture that relationship, because it is a lifeline for the mother.
The mother is only to attend the school if the school issues an express invitation or the father agrees to her attending. She cannot approach the school at will as she does not tell the school the truth about the children. Her lack of reality in recording her children’s illnesses and behaviour is a significant risk to them if the school does not understand the mother’s statements are not to be relied upon. The mother’s statements must be checked and that is not the role of the school. They can only deal with the father on these issues and to permit otherwise may have a negative impact on the children’s progress and stability.
The father must be able to use Dr Quadrio’s report and give same to the Department of Community Services, the police, and also the children’s school. It is not beyond the realms of possibility that the mother will make up or exaggerate events in the future. I would also permit the father, if he wished, to give this judgment to the children’s school if he believed that would be of assistance to the principal.
The mother must sign an HCF form so that the boys come under the father’s policy.
I will make the injunction set out by the Independent Children’s Lawyer in relation to Mr E. Mr E is an adult and he can sort things out. The children must be protected from any potential harm by coming into contact with him.
The mother can have no input whatsoever into the children’s health care or education, at this time. That is a very sad thing to say. To do so would expose them to the harmful consequences of her significant psychiatric illnesses insofar as reporting medical issues and facts are concerned which is overwhelming on the evidence. There is, it is agreed, no subterfuge, no intention to harm, or other tactic in the mother’s behaviour, it is solely as a consequence of her significant psychological illnesses, and the pathology that Dr Quadrio observed and spoke of. As Dr Quadrio said, the mother does not understand the negative effects her psychiatric illness has had on her children. The father’s words to Dr Quadrio were this:
I just want the boys to grow up as normal happy kids.
That says it all, and that takes priority over all else. That is why the mother must be excluded from exercising parental responsibility with the father, as is her presumptive obligation and the children’s right under the Family Law Act, because to do so would cause these children to be exposed to a further risk of harm to which they have already been exposed in the past.
Based upon those matters and having regard to the factors under s.60CC(2) (3) and (4) of the Act, and the matters to which I have had regard, I find that the presumption of equal shared parental responsibility has been rebutted. Such an order will have no diminution in the children’s right to a meaningful relationship with their mother but will protect them from possible unintentional harm at their mother’s hands.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Henderson FM

Associate: A. Morris

Date: 20 May 2009