Berry and Katz (No 2)

FAMILY COURT OF AUSTRALIA

BERRY & KATZ (NO 2)

[2014] FamCA 682

FAMILY LAW – CHILDREN – Where the child’s residence was changed on an interim basis to live with the father – Where the mother and the child have an enmeshed relationship – Where there are allegations of family violence – Where the mother’s mental health is in issue in respect of her parenting capacity – Whether the mother poses a psychological risk of harm to the child - Where there are issues as to the child’s schooling – Where it is considered in the child’s best interests for the parties to exercise equal shared parental responsibility – Where equal time is not considered in the child’s best interests – Whether substantial and significant time is in the best interests of the child - With whom the child should live and what time the child should spend with the non-residential parent

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA

G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT:

Ms Berry

RESPONDENT:

Mr Katz

INDEPENDENT CHILDREN’S LAWYER:

Ms Neilson

FILE NUMBER:

PAC

3825

2012

DATE DELIVERED:

22 August 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

5 - 8 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rich

SOLICITOR FOR THE APPLICANT:

Sterling Legal

COUNSEL FOR THE RESPONDENT:

Ms Hanna

SOLICITOR FOR THE RESPONDENT:

J A Brown & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Eldershaw

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta

Orders

All previous Orders concerning the child C, born … 2006, (“the child”) be discharged.
The father is to have sole parental responsibility for matters of a medical nature concerning the child, including as to his general health and wellbeing, medical treatment and intervention, except in the case of a medical emergency, in which case the parent who has the day-to-day care of the child may seek urgent medical attention.
Except as provided for in Order 2, the parties are to have equal shared parental responsibility for the child for decisions of a major long-term nature and, for the purpose of implementing this Order, are to make a genuine effort to reach agreement in a timely manner.
In the event of the parties being unable to reach agreement as to a particular decision of a major long-term nature in a timely manner pursuant to Order 3, the father may exercise sole parental responsibility in respect of that decision and in the exercise of sole parental responsibility, he must:
(a)Give genuine regard to the views of the mother; and
(b)Promptly notify the mother of the outcome of the decision and all reasonable particulars relating to it, such that she may participate in that aspect of the child’s parenting, including further decision-making, into the future.
C is to live with the father.
Except as otherwise agreed, the child is to spend time with the mother as follows:
(a)       During school term on the basis of the following two-weekly cycle:
(i)In week A, from the conclusion of school on Friday until the commencement of school on Monday (or Tuesday in the event Monday is a non-school day); and
(ii)In week B, from the conclusion of school on Friday to 9.30 am on Saturday.
(b)For one half of each school holiday period as agreed between the parties, but failing agreement:
(i)For the first half of each school holiday period in 2014 and each alternate year after that; and
(ii)For the second half of each school holiday period in 2015 and each alternate year after that.
(c)       For the purpose of giving effect to this Order:
(i)A school holiday period is taken to commence at 3.00 pm on the last day of term and conclude at 5.00 pm on the day immediately prior to the first day that the child is required to attend school for the following term (i.e. inclusive of any non-teaching days); and
(ii)Half the holiday period is calculated by reference to the number of nights in the period and changeover is to occur at 5.00 pm on the relevant day.
(d)       On Mother’s Day from 10.00 am to 6.00 pm.
(e)During the religious festivals of E and F from 5.00 pm on the day preceding the first day of each festival until 5.00 pm on the third day of the festival, such dates to be determined from year to year and advised by Suburb B religious centre.
(f)At such other times as agreed between the parties.
The mother’s time with the child is suspended on Father’s Day from 10.00 am to 6.00 pm.
Except where changeover occurs at the child’s school or as otherwise agreed, the parties are to meet at Suburb B Public Library at the commencement and conclusion of the times specified in Order 5.
Each party is to facilitate telephone communication between the child and the other party at reasonable times in accordance with his wishes.
Except as otherwise agreed between the parties, the child is to attend G School for his primary school education.
For the purpose of giving effect to the preceding Order, the parties are to forthwith do all acts and things:
(a)To cause the child to be enrolled at G School to commence immediately; and
(b)To arrange for the child to undergo a comprehensive academic and behavioural/social assessment by an Educational Psychologist for the purpose of ascertaining whether he should be enrolled in Year 2 or 3 for the remainder of 2014 and to identify any other programs or extension classes suitable for the child. For the purpose of giving effect to this order, except as otherwise agreed, the assessment is to be conducted by an Educational Psychologist as recommended by the Principal of G School.
The parties are to do all acts and things to complete all application forms to enable the child to sit the Opportunity Class Placement Test conducted by the NSW Department of Education when he is in Year 4.
C shall attend such high school for his secondary education as the parties agree, but failing agreement, the child is to attend the high school which ordinarily accepts students within the catchment area of the father’s residence unless the child is offered a place at a selective high school, in which case he shall attend that school.
The parties are to do all acts and things to complete all application forms to enable the child to sit the Selective High School Placement Test conducted by the NSW Department of Education when he is in Year 6.
The mother is at liberty to cause the child to participate in customs, practices and teachings of her religion at times that the child is in her care.
The father is at liberty to cause the child to participate in the customs, practices and teachings of his religion at times that the child is in his care.
Each party is to keep the other advised of their current residential address, email address and contact telephone number and advise the other of any changes within forty-eight (48) hours of such change occurring.
Each party is to promptly notify the other of any serious illness or injuries suffered by the child while in that parent’s care as soon as reasonably practicable and is to provide reasonable particulars as to the name and contact details of the child’s treating doctor and any hospital, medical facility or healthcare provider to which he is to be taken.
Each party is to do all acts and things and provide all necessary authorities to enable the other party to liaise directly with any medical practitioner who treats the child and to provide that party with any information he or she may request from time to time in relation to the child’s health to the extent permitted by law.
Each party is to forthwith do all things, sign all documents and give all consents and authorities necessary to ensure both parent’s contact details are recorded on any school or extracurricular activity which the child attends as both a parent and an emergency contact person, and further so that each parent can obtain such information, reports, newsletters, photographs and other materials from those organisations as they wish.
Each party is restrained from:
(a)Denigrating the other or discussing these proceedings in the presence or hearing of the child and is not to cause or permit any other person to do so; and
(b)Questioning the child about the time he spends with or communication he has with the other party and is not to cause or permit any other person to do so.
The parties are to each pay half (the sum of $5,495) of the costs of the Independent Children’s Lawyer (a total sum of $10,990), within forty-two (42) days of the conclusion of the property component of these proceedings by making payment directly to NSW Legal Aid.
The father is to initially be responsible for full payment of the cost of Dr D’s appearing for cross examination at the final hearing, with direct payment of Dr D’s invoice to be made within twenty-one (21) days of receipt of same.
The issue of whether the mother is to reimburse the father for a proportion of the Dr D’s fees in respect of his two reports and attending at Court is stood over to be determined together with the outstanding property matters, noting that the father has paid a total of $19,500 in respect of Dr D’s reports and is to pay for the cost of Dr D’s appearance at Court pursuant to Order 23.
All outstanding parenting matters are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Berry & Katz (No 2) 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 PARRAMATTA

FILE NUMBER: PAC3825 of 2012

Ms Berry

Applicant

And

Mr Katz

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The parents of the child, who is seven, have different ideas about how he should be raised. After his birth they lived together as a family for a very short time and have not resolved his future parenting. Each wishes for the child to live with them and spend some time with the other parent. Both parents agree that the long-term parenting arrangements should be jointly shared between them.
C’s mother asserts that the father has been violent and controlling throughout their relationship, and that this raises a risk of harm to the child.
C’s father is concerned about the mother’s mental stability and the impact this may have on the child’s upbringing and long-term well-being.
The issue for me to determine is whether either of the parent’s proposals or some other orders meet the best interests of the child.

Background

In May 1965 the child’s father, Mr Katz, who is of Country H heritage, was born in Australia.
In June 1966 the child’s mother Ms Berry, was born in Country I. In 1971 when she was four and a half, the mother migrated with her family to Australia.
The parents met and first formed a relationship in Melbourne in about 1985 when the mother was 19 and the father was 20.
After the parents’ relationship ended, the father returned to Sydney and subsequently formed a relationship with Ms J, who he later married. Ms J and the father have two daughters - Ms K, who is currently 24, and Ms L, who is 18.
After the relationship with the father ended, the mother continued to live in the M Town area of Victoria.
From April 1991 to May 2000, when the mother had a number of medical admissions to M Town Hospital, she is recorded on numerous occasions as displaying symptoms of mental conditions.
In December 2001 the father and his first wife Ms J separated.
In early 2002 the parents resumed their relationship and in around May 2002 they began living together in the father’s home in Sydney. Over the next seven years, until March 2009, there were some short periods when the parents lived separately and other periods of a few months where they were separated but remained living in the father’s home.
In October 2002 the father and his former wife concluded their parenting and property arrangements by consent. From around this time, the father’s daughters stayed with the parties, including on weekends and during half of the school holidays.
In early 2004 the mother commenced a Bachelor degree as a remote access student. She was also working at this time. The mother had, at the time of the hearing, not completed her degrees and had sought to either withdraw, defer or complete a reduced workload in each of the years she was enrolled. She has on numerous occasions obtained medical certificates to enable extensions in time for the completion of university work and other considerations.
In about November 2004 the mother sustained an ankle injury and stopped work.
In March 2005 a psychologist Mr N commenced treating the mother.
In August 2005 and March 2006 there were concerns by health practitioners about a mental health component concerning the mother’s ankle injury and subsequent behaviour.
C was born prematurely and by caesarean section in 2006. The police and Community Services became involved when the child was born, though there is a dispute as to the reason for their involvement, which is dealt with later in these reasons. The mother was transferred to a psychiatric unit for one night.
In March 2009 the mother and the child, who was two and a half, moved to the home of the maternal grandmother in M Town, Victoria. The father visited M Town on a number of occasions and spent time with the child.
In mid-2009 the mother began practising her religious faith when she was living in M Town. The mother has continued to practice that faith since this time and has raised the child in accordance with the practices of that faith.
In December 2009 the mother and the child returned to Sydney and resumed living with the father.
In January 2010 the parents married. Shortly after, in March 2010, the parents separated on a final basis but continued living in the same house.
In August 2011 the parents divorced.
Since January 2012, when the child was five, the mother had schooled the child at home. The child’s mother applied for him to be registered for home schooling in August 2012, and he was approved for Year 1 and Year 2, to be completed by October 2013. The mother followed the curriculum provided and approved by the Board of Studies. The mother also supplemented this schooling by enrolling the child in part-time external education programs in her religious faith.
In September 2012 the mother commenced these proceedings in the Federal Magistrates Court, as it then was, initially only in respect of property, but later introducing parenting matters.
In November 2012 a Federal Magistrate made Orders that the child live with his mother and spend time with his father each weekend from 10.00 am Saturday until 6.00 pm Sunday, except on the last Sunday of the month when he was to be returned by 10.00 am. The child also was to spend time with his father each Wednesday from 5.00 pm until 7.00 pm and half of the school holidays on a week about basis. These Orders came into effect when the mother moved out of the former family home into rented accommodation in Suburb B in February 2013.
In the mother’s Amended Initiating Application filed in April 2013, she sought an order permitting the relocation of herself and the child to M Town. Although it is not clear exactly when she abandoned this proposal, by the time the matter came to hearing, she was no longer seeking such an order.
In a Response filed on 1 May 2013, the father sought further interim parenting orders, but a Federal Circuit Court Judge declined to deal with the application until an expert report was available.
In September 2013 the report of a psychiatrist, Dr D was released and the matter was transferred to the Family Court. Dr D recommended that the child be moved to reside with his father on an interim basis and for the child’s time with his mother to be suspended for four to six weeks and then be supervised.
In September 2013 the mother applied for registration for the child to be home-schooled for a further two years, which was approved.
On 10 February 2014 the application by the father for interim parenting orders was to be heard, but agreement was reached between the parties as to appropriate orders. I made interim Orders by consent providing for the child to live with his mother and spend time with his father from 10.00 am Saturday until Wednesday before school in each alternate week. There was also an Order made that the child be enrolled in Suburb B School. The mother also agreed, and a notation was made to this effect, that she would not take the child to any appointment with her treating psychologist or any other psychologist.
C was enrolled in Suburb B School in accordance with the Orders and attended for three days following the enrolment when he was in his father’s care. The child settled well at school, made friends and participated in class.
When the child commenced the next period of time in his mother’s care, he did not attend school on any of the 10 school days in that period. The mother took the child to her treating psychologist for some form of therapy, though she was aware that the father had not consented to this and that it was contrary to her agreement, which was noted in the Orders of 10 February 2014. There are some other factual matters in dispute relating to the child commencing school, which are dealt with later in these reasons.
On 26 February 2014 when the matter returned to Court, Orders were made for the child to live with his father and spend no time with his mother pending further order. The mother was also ordered to take the child to his father at Suburb B Police Station at 8.00 pm that evening.
The mother arrived at the Suburb B police station shortly after 8.00 pm on 26 February 2014 with the child but did not have any of the child’s belongings with her. When the mother and the child entered the police station the mother said to the child “go and tell him, tell him you do not want to go” numerous times and then the child sat with his mother with his arms around her. The father asked for the assistance of police and when a police officer approached them, the child clung to his mother and the police officer was unable to remove him. The father then approached the child and the mother again told the child to “tell him you do not want to go”. The father then tried to grab the child and the mother again said “he doesn’t want to go”, which the child repeated and would not let go of his mother. A police officer then again approached the mother and told her to comply with the Court Orders and the mother said “we are here because his father put him into a public school and did not want him home schooled. His father is violent and I had to take out an AVO”.
The mother left the police station at about 9:20 pm. The father was distressed by the circumstances and it appeared to him that the child was also distressed.
On 27 February 2014 a Recovery Order was made. The child’s mother returned the child to his father without the necessity for the warrant for recovery to be executed. The child thereafter has lived with the father on an interim basis and has settled back into Suburb B School.
On 3 March 2014 the child fractured his wrist during an accident at school. The child’s father did not inform the mother of the accident.
On 27 March 2014 further interim Orders were made, providing for the child to spend time with his mother every Saturday from 10.00 am to 4.00 pm. These Orders continued up until the time of hearing.

The Areas of Dispute

There are many factual matters in dispute between the parties, which in my view are not critical to determining where the child should live, the amount of time he should spend with the other parent or parental responsibility. These issues include differences in parenting style, the nature of extracurricular activities for the child organised by each parent and the quality of meals provided by the respective parents.

There are, however, some significant central factual matters of dispute which relate to the child’s best interests, including the circumstances surrounding the child’s commencement at school in February 2014, the allegation that he has been exposed to family violence and whether the mother suffers from a mental condition.

Was the father controlling and violent throughout the marriage?

In her affidavit the mother makes numerous allegations that the father was violent, controlling and abusive throughout their relationship. The father denies that he was violent, controlling or abusive. Ultimately, no submissions were made on behalf of the mother concerning these allegations. However, in my view, these issues must be resolved because of the emphasis in the legislation on protecting children from harm, particularly associated with being exposed to family violence. A determination of whether the father was violent and abusive as alleged, in my view, is also a significant issue relating to the parties’ credit.
So far as the allegation of controlling behaviour is concerned, the mother alleges that the father was financially controlling in that the money she earned was given to him directly and he used it to pay for household expenses. She also says that when she did spend money from her wages on herself or the house she had to account to the father for it and give him receipts for any purchases she made. She says, as a result, she became anxious and mentally and physically exhausted. She also said that the father became verbally abusive during discussions concerning his disapproval of items she had purchased.
The father denies controlling the mother financially. He says that the mother was in paid employment for a very short time only throughout their relationship and that he financially supported her, including paying a weekly allowance in cash even when they were separated, but living in the same house. The father said that from time to time during that period he asked for receipts but the mother refused to give them to him.
The mother also says that the father was particularly controlling when she was pregnant, as well as being verbally abusive. Although she does not set out examples of his controlling behaviour at this time, she says she became so fearful that she consulted a social worker for assistance and felt anxious and tearful and lost her self-confidence.
The mother alleges in her affidavit that throughout the relationship the father was sexually demanding and aggressive, which made her anxious and fearful and at times he had unwanted sexual contact with her. In other documents, such as a statement made for the purposes of Victims Injury Compensation, she refers to the father’s conduct as “sexual assault”. The mother does not specify any particular incidents of sexual abuse or assault in her affidavit or oral evidence. The father denies any sexual abuse against the mother.
In relation to the allegation of verbal abuse, the mother says that the father was verbally abusive to her and that the father’s daughters complained to her that the father shouted and made them feel scared.
The father denies that he was verbally abusive to the mother or his daughters. The father’s eldest daughter Ms K says in her affidavit that the mother yelled and screamed over minor issues when she and her sister Ms L stayed at their father’s home and that she never heard her father swear or yell. Ms K also described a high level of conflict between her and the mother and said she was required to seek counselling for two years due to her distress. Under cross examination it was not put to Ms K that the mother did not scream and yell over minor matters or that it was the father who was verbally abusive.
Although the mother’s contention is that the father was violent towards her, she makes no specific allegations of violence prior to the child’s birth. However, during the admission to hospital for the child’s birth, the mother says she informed a social worker “about the domestic violence [she] suffered at [the father’s] hands” and she says as a result Community Services became involved and an investigation was commenced.
In an incident that was said to have occurred in about April 2007, when the child was eight months old, the mother says that the father shouted at her before he left for work in the morning and refused to give her money for food. She says that she went to a women’s refuge for a few hours and returned after the father promised to change and said he was sorry. The mother claims, however, that the father did not change and only got worse, continuing to yell at her and belittle her.
Although the mother makes a general complaint that the father has been very quick to become angry, she gives only one example of the father’s violent or aggressive conduct. She alleges that in about February 2009, just before she moved to M Town, the father “pushed [her] aggressively during an argument.” The mother said that later when the father returned to the house the following occurred:
He shouted at me and he was aggressive in front of [the child]. I feared that he would bash me. I ran to the back door, but it was blocked by iron bars. I screamed to the neighbour [Mr O] to call the police. I tried to reach the phone to call the police but before I called the phone was ripped out of its socket. I was hysterical. The police were called and they sought an AVO on my behalf.
The mother also alleges that during this incident the father threatened that if she proceeded (pursuing the matter through police or the courts) either he or Community Services would end up with the child and she would never see him again. The mother says, as a result, she “was so anxious and terrified that I asked the police to withdraw the AVO at a later hearing at Suburb P Magistrates Court, which they did”.
The father’s version of this incident is that he and the mother were having an argument and she started screaming and yelling outside so that the neighbours could hear. The father says he was interviewed by police and attended Suburb P Court as an application for an Apprehended Violence Order (“AVO”) against him was made. The father says that at the Court, proceedings were withdrawn without him being required to enter the courtroom.
The mother says in her affidavit that she and the father finally separated in March 2010 as she “could not take his physical, emotional and psychological abuse any more”.
Following separation when the parties continued to live in their former matrimonial home, the mother alleges that there was an incident in August 2012 when the father stared at her in the bathroom, shouted and swore at her in front of the child and threatened her that Community Services would remove the child. The mother says that she called police who reassured her that Community Services would not remove the child from her. The father denies any misconduct on his part, including looking at the mother in the bathroom, shouting or swearing at her in the child’s presence.
On another occasion when they were also separated, but living in the same house, on around 28 October 2012, the mother says that the father came so close to her when they were cooking in the kitchen he was overbearing and she felt intimidated. She said she began to sweat and shake and could hardly talk and felt a panic attack coming on and called the police. The father’s version of this event was that when he was preparing a meal the mother suddenly turned on him and said “get out of the kitchen or I’ll take an AVO against you.” He said that the mother became agitated and he went to Suburb Q police and reported the incident himself.
The father denies all general allegations that he was controlling or assaulted the mother. As there are no other specific allegations there is no alternate version given by the father. The father does, however, refer to one occasion when the parties were having an argument, in the course of which he pushed his hand into the air and it struck a mirror, which chipped some plaster off a wall.
I am not satisfied that the father was controlling, violent or abusive towards the mother throughout the relationship or that the child was exposed to family violence for the following reasons. Firstly, in relation to each of these matters, the mother makes generalised, non-specific claims. The mother makes particularly serious general allegations that the father was sexually aggressive and at times had unwanted sexual contact with her but does not outline a single specific incident of this type. The mother makes no specific allegations of physical assaults, except to say that she informed a social worker “about the domestic violence” when she was in hospital at the time of the child’s birth.
Even the incident which resulted in the mother attending a women’s refuge for a few hours in April 2007 when the child was eight months old and the incident which led to the application for an AVO in February 2009 are vague and non-specific, with the allegation being, for example, that the father “was aggressive in front of the child”.
Secondly, the father was not cross examined in relation to the serious allegations of “unwanted sexual contact” that the mother says occurred on many occasions. Nor was it put to him that he was violent to her on any occasion. He was only questioned in relation to the incident where a mirror was knocked over in a very general sense and it was not put to him that he had harmed the mother during this incident.
Further, there is no independent corroboration of the mother’s version of any incident and other evidence is more consistent with the father’s version. For example, the mother asserts that Community Services only became involved at the time of the child’s birth due to the allegation of domestic violence. Documents from the Community Health Service and the police indicate that the greater concern about the child’s welfare related to the mother’s mental state rather than allegations about domestic violence. There are also no incidents of violence prior to or at around the time of the child’s birth recorded in police documents.
Police documents in relation to the February 2009 incident leading to the application for an AVO, which contain the mother’s version given to police at the time of the incident, refer only to the father yelling and shouting and do not include a complaint by the mother that the father pushed her. Police records concerning the August 2012 incident make no reference to the mother’s allegation that the father threatened that Community Services would remove the child or to the police giving reassurance to the mother that Community Services would not remove the child. The police records indicate that the mother complained that the father had stared at her, making her feel uncomfortable and that they had a short verbal argument. Police records in relation to the October 2012 incident do not include any allegations made by the mother about having felt overborne or intimidated by the father. Rather, the mother reported to police that the parties had had a verbal argument over religious differences and money and the version given to police is more consistent with the father’s version of events, including that it was he who made complaint to the police that the mother had been verbally abusive.
When interviewed by Dr D, although the mother had many complaints about the father, she only told Dr D in a very general way that during her pregnancy the father pressured her to have “unwanted and aggressive sexual activity” as alleged in her affidavit. The only allegations of violence made to Dr D were the same incidents referred to in her affidavit.
There are inconsistencies both within the mother’s affidavit and revealed under cross examination about the allegations of abuse and violence and the impact that it had upon her. For example, even though the mother alleges that the father’s treatment of her caused her to feel terrified, anxious, depressed, isolated and dependent (on him), and that she took the child to Victoria with her between March and December 2009, she not only returned to Sydney and resumed living with the father, but inexplicably married him one month later in January 2010.
In my view, there is also a particular issue going to the credit of the mother. It is the mother’s position that after she finally separated from the father and established her own home with the child, she was no longer fearful of the father. Under cross examination, the mother said that she did not fear the father at all and was more than comfortable communicating with him. In the course of the proceedings the mother looked directly at the father and showed no signs of distress or discomfort being in the courtroom with him.
However, in the course of the proceedings on 26 February 2014, only weeks prior to the trial, when the father came near the mother in the courtroom while making his way to the witness box, the mother stood up and moved in front of the bar table because, as I understand it, she was so fearful of the father that she could not tolerate being near to him. She also on a number of occasions on that day pulled her headscarf around her face to such a degree that her face was almost concealed, bowed her head, averted her eyes and spoke in an extremely quiet voice. I understood these actions to indicate her fear of the father. She also said in her oral evidence on that day that she felt very uncomfortable with the father being in Court.
In her oral evidence on 26 February 2014 concerning the events surrounding the child’s commencement at school a couple of weeks previously, the mother said that she told the school about “the domestic violence history” and asked the principal not to let the father come near her. She said that when she attended the school the father charged towards her and she had “had to shout out ‘don’t come near me, stay away from me’”. The mother also claimed that she attended Suburb B Police Station on that day to obtain an AVO against the father. There is no evidence that a complaint to police or an AVO application were in fact made.
In my view, the mother’s starkly different presentation and claims about the father within a matter of weeks does not reflect well upon her. I am satisfied that she does not fear the father currently as that finding is consistent with all of the evidence. I am further of the view that the mother had no rational basis to fear him in late February either at the school or in Court on the evidence before me. In my view, the mother dishonestly conveyed the impression to the Court that she was fearful of the father for the purposes of trying to advance her position at the interim hearing.

Was the child exposed to conflict between his parents?

Although I am not satisfied that the father was violent towards the mother as alleged, I am satisfied that there was a significant degree of conflict between the parents, especially during the period in which they were separated, but living in the same house.
The father alleges in his affidavit that the mother’s behaviour was volatile and that she regularly shouted and screamed at him and at the child. The father gives many specific instances of the mother screaming and shouting at the child throughout 2011 and 2012 in particular, and maintained under cross examination that these events had occurred exactly as he set out in his affidavit.
The mother does not give a version of any of these incidents of alleged aggression on her part in her affidavit, though she denies that she behaved in a volatile or aggressive manner in front of or in the presence of the child. Under cross examination she denied each of the incidents in which she was said to have shouted or yelled at the child. She said that there was not a single incident where she had raised her voice and that she was “not a screaming person”.
The father’s allegations are supported by the evidence of his daughter Ms K, who spent a significant period of time in the family home. As previously indicated, it was not suggested to this daughter under cross examination that the mother did not scream and yell. Overall, I was impressed with Ms K’s evidence. She was not entirely favourable towards her father and conceded, for example, that she was angry with him for breaking up with her mother and that there were happy times when she stayed with her father and the child’s mother. She remained firm, however, that the father did not yell or denigrate the child’s mother and that it was the child’s mother who yelled and screamed, often over minor matters and that she became so distressed at the conflict between herself and the child’s mother that she required counselling.
Although the mother makes many complaints to Dr D about the father, the first report only contains one allegation made by the mother of the father yelling. The father told Dr D about the mother becoming increasingly antagonistic towards his daughters and becoming particularly aggressive during the period he and the mother were living separated but living in the Suburb G home. He also told Dr D of a long history of the mother’s emotionally and verbally abusive behaviour associated with her bouts of extreme anxiety. Dr D concluded in his first report that there was clearly quite a deal of verbal conflict in the home and was of the view, particularly based on the medical records, that it was likely that the mother was louder and more vehement than the father. He was also of the view that this occurred almost entirely when the family were living separated under the same roof for three years, which he described as “a particularly unsatisfactory situation”. Having regard to all of this evidence, I am satisfied that the mother was the more verbally abusive of the parents and that at times the child was exposed to this verbal abuse and to conflict between his parents.

What were the circumstances surrounding the child’s commencement at school in February 2014?

Until the commencement of the 2014 school year, the child had been home schooled by his mother. On 10 February 2014 Orders were made by consent for the child to commence at Suburb B School and there is no dispute that he was immediately enrolled as required, that he attended on the first three days when in the father’s care but was withheld for the next ten school days when in the mother’s care.
It is the mother’s case that the child had an extreme reaction to commencing school and, as a result, she withheld him from school. It is the father’s case that the mother simply disobeyed Court Orders for no good reason or was not capable of complying with them due to her mental impairment.
Neither the mother or father give details in their respective trial affidavits about the child’s behaviour around the time of him commencing school, but the evidence given on 26 February 2014 in the interim hearing after the mother had withheld the child from school was also admitted and relied upon in these proceedings.
The mother’s oral evidence concerning the child’s presentation and behaviour around the time of commencing school given on 26 February was extremely disjointed and confused. Ultimately, she said that for several days prior to starting school the child said things like “I don’t want to go to school. Dad’s not listening to me”.
On numerous occasions when giving evidence the mother described the child as “traumatised” over starting school and said that on two occasions in the week prior to commencing school the child had lost control of his bowels due to fear. The mother said that she obtained a referral for a paediatric psychiatrist from her general practitioner as the child was not coping, but no medical report of any kind was produced to the Court, and it is unknown whether the mother arranged for the child to attend upon a psychiatrist.
It became apparent from the mother’s evidence that she had attended the child’s school on his first day, even though he was not in her care on that day. She also agreed that on the first day she had telephoned the school and was informed that the child had settled in and had made some friends. Under cross examination, it also became apparent that she had telephoned the child early in the morning on his first day at school. She said that the child asked her to pick him up but she said to him “I can’t. You have to ask your dad for permission. It is up to you and your dad.”

The mother agreed under cross examination that she spoke to the Deputy Principal on the child’s first day at school to request that the child see the school counsellor. She said that she was told that the school counsellor was busy and that the Deputy Principal suggested that the mother arrange a private counsellor. The mother said she decided to take the child to her counsellor (psychologist) as the child is familiar and comfortable with her. The mother said that the father did not consent to the child seeing either the school counsellor or her own psychologist. Under cross examination, the mother ultimately agreed that, although she had assured the Court on 10 February that she would not take the child to any psychologist without the father’s consent, she did take him to her own treating psychologist, Ms S.
The general tenor of the mother’s evidence was that the child was too traumatised or unwell to attend school on each of the 10 days that he was in her care after having started school. The mother seemed to use the words “traumatised” and “unwell” interchangeably and said that he did not suffer a physical illness, but that he was psychologically ill as he was traumatised. The mother initially had great difficulty under cross examination in identifying any symptoms of the child’s trauma other than the alleged incidents when the child had lost control of his bowels. She subsequently said that he was crying, teary and clingy. At this point the mother said, for the second time in relation to this behaviour, “I love the attention. It’s - but I want him to not be scared”. Earlier, she had said “I love the attention, but it’s - I’m worried about my son.”
At another point in her evidence on 26 February and during the trial when she was cross examined concerning this issue, the mother said that the reason the child had not remained at school despite the Court Order was because she was unable to force him to go anywhere. When asked about what she had done to prepare the child for starting school, the mother said she did not say anything but that the father had “broken the news to him” about starting school. In relation to her capacity to ensure that the child attended school, under cross examination at the trial the mother was unable to identify anything that she could have said to reassure him. She said that the child had made up his mind in respect of attending school and the only thing she could do to assist him was to suggest that they attend the doctor.
Some of the mother’s evidence about this issue was very contradictory. Although she said that she felt the whole arrangement concerning the child’s commencement at school was too rushed and that he was traumatised and that was traumatising for her, almost immediately thereafter when pressed for details, the mother said there were many things she could not remember and then denied that she felt anxious or upset. The mother then reiterated that she no anxiety and had not had panic attacks for years.
On 26 February the father’s evidence at the interim hearing was adduced by affidavit. In the course of cross examination, the father said that during the first three days that the child attended school (when he was in the father’s care) he spoke to the child’s class teacher and Deputy Principal and the reports about the child were positive and he had settled in very well.
The father said that the only suggestion that the child should attend upon the school counsellor was a made by the mother to the school and he was told that that the mother wanted to be present during that counselling. The father said that he agreed with the Deputy Principal that if the mother felt the child needed to see a counsellor, he would consent to that. The father said that he understood that as a result the child had been spoken to very briefly by the counsellor to see how he was going.
Dr D prepared a supplementary report relating to the events surrounding the child’s commencement at school and the events following, including the making of Orders under which the child moved to live with his father. The father told Dr D when interviewed for the supplementary report that during the weekend prior to the child starting school the child told him that his mother said that if he was put into school the father would never see the child again.
The father told Dr D that he had taken the child to school for the first three days. When asked by Dr D about the mother’s references to the child having soiled himself prior to starting school, the father said that the child had not soiled since then either at school or at his home. The father told Dr D that on the child’s first day of school the child had been fine about going until his mother phoned him and, although the father could not hear all of what the mother was saying, he formed the view that she was warning the child about various things and that the child burst into tears. The father told Dr D that the child had been a bit nervous about going to school because it was his first time, but the father did not think that this approached any unusual degree. The father also told Dr D that after the first day the child’s teacher said the child had been putting his hand up [in class] and seemed to be settling in even at that early stage.
The father also told Dr D that the child was fine for the next two days, but after his mother collected him from school on the third day, she did not return him to school. The father told Dr D that when the child resumed school after the Orders of 26 February 2014, he quickly started to make friends and seemed to have good support from his teachers. Since then, there had been no days when the child has been reluctant to go to school. The father also said that the feedback from the school has been excellent with the father having been told that the child is intelligent, engaged in the classroom, concentrates on doing his work and generally gets through his work quite quickly.
When the mother was interviewed by Dr D, she said that although she had agreed to the Orders for the child to start at Suburb B School, she was so concerned over the way he had responded to the prospect of starting school that she felt that the process of integration into school needed to be revisited. She told the doctor that in the week prior to starting school, the child had lost control of his bowels on two occasions so when he started school she tried to get the school counsellor to look in on him. She told Dr D that she had sent an email to her solicitor, which she had copied to the father, referring to the soiling incidents and that the child was always depressed and crying when she telephoned him, [at the father’s house] from which she concluded that he needed help from the school counsellor to help his transition to school.
The doctor understood that the mother had spoken to her general practitioner about the child’s fearfulness and he had given her the name of a behavioural paediatrician. It did not appear that the mother suggested to Dr D that the child had in fact seen the paediatrician.
According to his report, when Dr D asked the mother about the soiling incidents, he understood that she said that before one of the incidents, the child had overheard her speaking to the school principal and asked her what she was talking about. The mother said that when she explained to the child that his father wanted him to start school, this led to the soiling.
In his second report and under cross examination Dr D said he felt that the mother’s anxiety was the most significant factor in the soiling incident, although some anxiety on the child’s part was understandable. The doctor was of the view that soiling is developmentally regressive behaviour. He described it as:
… [a] highly developmentally inappropriate response which in my view is indicative in part of the extremely high level of his mother’s arousal at the time and also of the child’s own susceptibility to developmental regression despite his overall cognitive abilities.
Under cross examination as to the issues surrounding the child commencing school, Dr D did not think that the child had any reason to be so seriously anxious to soil himself and said that he had no doubt that the child’s reaction showed he could not manage his mother’s anxieties. The doctor said that the child had been going to school part time when being home-schooled and had not found school terrifying, and did not think that the child had the life experience to lead him into this state of terror at the prospect at starting school. The doctor said that the degree of anxiety that the child showed (in soiling himself) exceeded even school phobia and that he had never known a child to have soiled himself in this circumstance. Dr D said that the child was clearly demonstrating characteristics of his mother’s anxiety, which was part of the “enmeshment” between the child and his mother. The doctor described the enmeshment as something “which affects the child by he and his mother becoming one, with each living each other’s experiences”.
The doctor was also asked about the alternative factual scenario, that is, that the mother had reported the soiling, but that it had not occurred. The doctor said that if the child had not soiled himself but the mother claimed he had, this would be, in the opinion of the doctor, “an opportunistic lie” made by the mother.
I am unable to determine whether the child did soil himself prior to commencing school as alleged by the mother, although I have some concerns that it did not occur for the following reasons.
In Dr D’s first assessment, the mother reported that the child had not shown “any nervous problems”, that he had friends at his part-time “schools”, and that none of the staff at either setting had reported problems with his behaviour or peer relationships. This led Dr D to conclude that the child did not have the life experience to lead him to the state of terror which the mother reported he had reached at the prospect of starting school. The doctor also had not seen such extreme behaviour of a child soiling himself even in cases where children suffer from school phobia. The behaviour is also regressive and to that extent inconsistent with the child being otherwise regarded as well-developed and of above average or superior intelligence.
Further, there is no corroborative evidence that the mother did report the soiling, such as a report from a doctor or behavioural paediatrician to whom she says she made a report. It is also not entirely clear when exactly the soiling was said to have occurred. At one point it appeared to follow a discussion that the mother had with the school principal though it is not clear when this was said to have occurred. There is also uncontested evidence that the child settled well into school from the first day and upon his return to school after the Orders were made on 26 February 2014, which seems unlikely if he had been so seriously traumatised as described by the mother.
Although I have some reservations on this issue and cannot be satisfied that the child did soil himself as alleged, I equally am unable to be satisfied that the child did not soil himself and that his mother has lied to advance her own case that the child found school traumatising.

Does the mother’s anxiety impair her parenting capacity or give rise to an unacceptable risk of harm to the child?

The extent of the mother’s anxiety and the impact it has upon her parenting is a critical issue in this matter.
It is the mother’s case that she previously suffered anxiety, panic attacks and depression as a result of the father’s violent and controlling behaviour towards her, and these conditions are related entirely to her relationship with the father when she was living with him before and after separation, and later divorce, in the same house. The mother also concedes that the stresses of study and exams contributed to her mental state.
The mother maintains in her affidavit and under cross examination that she no longer suffers from anxiety or any other mental health issue since she has no longer been living in the same house as the father.
It is the father’s position that the mother has had a long-standing history of mental health problems and that these issues continue to impair her parenting of the child.
Medical records obtained under subpoena from M Town Hospital indicate that the mother was admitted to the hospital on eight occasions between the ages of 24 to 29 for medical reasons. On her first admission a psychologist expressed concern that she may have underlying personality problems. On another admission the mother appeared to the surgical registrar to have some “profound psychological problems”. On that occasion, as the mother reported that she felt “desperate that she might do something including perhaps killing herself and the baby” [she was pregnant at the time], she was referred for psychiatric review. On another occasion the mother was referred to a consultant psychiatrist but she threatened to call the police if the psychiatrist attended. In the following month, the mother is reported to have kicked at a staff member in the process of refusing analgesia and a referral was made for a psychiatric consultation. Six weeks later the mother was readmitted and noted to be “extremely anxious”. When her dressing was being changed she became very aggressive and was hitting at the staff member and screaming.
Approximately 18 months later, in June 1995, a doctor contacted the hospital wanting to refer the mother, who he described as threatening to her father, socially isolated, hallucinating and paranoid. The mother is noted at this time to have been visited at home by a person from a mental health team but was diagnosed as having social problems, rather than a psychiatric illness. Shortly after she was reviewed by a psychiatry registrar at the community health centre who reported that she displayed “a lot of anxious checking behaviour and recent depression” but was judged not to be psychotic. The following week, in July 1995, the mother is recorded as having requested an admission to the psychiatric unit at the hospital and was believed on examination to be experiencing delusional ideas and was described as very irritable, demanding and thought-disordered. She was discharged against medical advice. The mother was diagnosed at that stage as having a possible schizophreniform illness.
Documents obtained under subpoena from a medical clinic in M Town indicate that there were two consultations in March 2002 where the mother was observed as having irrational fear, compulsive behaviour, delusions and hallucinations at the first consultation and delusions at the second consultation. A diagnosis of paranoid schizophrenia was made. This was approximately two months prior to coming to Sydney to reside with the father.
The mother does not refer at all to her mental state prior to living with the father in her affidavit. According to her affidavit, she first started experiencing anxiety shortly after she started living with the father in 2002.
Documents produced under subpoena and examined by Dr D indicate that between mid-2002 and mid-2005 the mother consulted doctors at a medical centre. The doctor said there are regular references to anxiety symptoms and a large number of medical certificates were provided to either excuse the mother from studies or ask for special consideration due to chronic anxiety or exam phobia.
When cross examined about the lack of evidence in relation to her mental health prior to living with the father in her affidavit, the mother said that she has never had a mental health issue or mental illness and that she did not consider anxiety a mental health issue.
The mother also did not recall being referred to a mental health clinic when pregnant with the child 2006 and originally attributed the referral to the doctor “siding with” the father, though she ultimately accepted that the referral had been made.
At the time of the child’s birth, the mother says in her affidavit that the father was unsupportive of her and that she was treated with morphine and found it very difficult to cope. The mother first says in relation to Community Services being called that she did not understand why this occurred. She then says she was very anxious and “may have panicked a bit”, but does not describe any behaviour that would cause Community Services to have intervened. The mother then says that she informed a social worker about the husband’s domestic violence and that as a result Community Services became involved and an investigation was commenced. She says that as a result of Community Service’s involvement she was initially placed in “a different ward” to the child for one night while she was assessed by a psychiatrist, who cleared her, but does not state in her affidavit that she was placed in a psychiatric ward.
Under cross examination, the mother seemed to maintain that her presentation and the hospital staff’s concern at the time of the child’s birth was due to her reaction to the medication she had been given. The mother emphatically denied telling hospital staff that she did not want the baby or that she said she may kill him. After extensive cross examination, the mother was not prepared to concede that she had been taken to a psychiatric ward and that Community Services had become involved due to concerns about her mental health.
Medical records surrounding the child’s birth are incomplete, as a separate medical health file in relation to the mother was not able to be located. However, the file relating to the child indicates that on 14 August 2006, two days after the child was born, the mother saw a hospital social worker to whom she disclosed a history of domestic violence. It is recorded that the social worker found the mother difficult to engage and the mother refused to discuss the pregnancy or the relationship. Due to her concern the social worker did make a report to Community Services but did not tell the mother about the notification.
The hospital records indicate that later on 14 August the mother saw the paediatrician, who was quite concerned about her mental health and noted the following:
Psychotic/paranoid/thought disordered. Lacking in insight and due to be scheduled. Refusing nursing observation of the baby. Reacting abnormally to the baby – concerned it may not be alive.
The records indicate that Community Services were notified, though it is unclear whether the child was actually taken into care. The mother was transferred to the psychiatric unit but was discharged from the unit the following day on the basis that there appeared to be no mental health concerns. The notes also indicate that the psychiatrist who had seen the mother in the psychiatric unit thought that the more likely diagnosis was of borderline personality disorder.
The mother was discharged from the hospital but the child remained for another two weeks. On 15 August, when seen by the social workers the mother is recorded as having said she did not remember the events of the previous day and wanted Community Services to be contacted so that the notification in relation to domestic violence could be withdrawn, possibly because the father had become upset about it. Over the following two weeks when the mother continued to visit the hospital on a daily basis until the child was discharged, she was noted to be very anxious about handling the child and worried that she might accidently harm him. There is a note referring to the Suburb R Mental Health team, who were attempting to provide some daily follow up after the mother’s psychiatric admission. The social worker spoke to the mother, who minimised the previous allegations of domestic violence and attributed them to miscommunication.
After the follow-up referrals following the child’s birth nothing is known about the mother’s mental health until she was referred for the preparation of a mental health care plan in October 2011. Although Dr D had access to documents produced under subpoena from Mr N, a registered psychologist, who he says saw both parents at various times between March 2005 and January 2009, those documents were not tendered in the proceedings. Dr D also appeared to have had access to documents obtained under subpoena from a general practice where the mother attended between January 2006 and mid-2013. Although he refers to a number of documents which contain references to matters relating to mental health none of these documents are in evidence in these proceedings.

As it is important that medical matters are determined in a timely manner, I am satisfied that the person with whom the child lives should have sole parental responsibility for such matters. The parent with whom the child does not live, however, should be permitted to receive information from treating medical professionals and to be updated by the other parent as to medical matters arising from time to time.
Other than medical matters, I am satisfied that it would be in the child’s best interests for his parents to exercise equal shared parental responsibility when making major long-term decisions.
Having found that the parties are to share decision-making other than as to medical matters, pursuant to s 65DAA of the Act, I must consider whether it would be in the child’s best interests to spend equal time with each parent or substantial and significant time with the non-residential parent, and whether either of these arrangements would be reasonably practicable, or whether it should be something less.

C’s living arrangements

I am not satisfied that it would be in the child’s best interests to live in an equal time arrangement between his parents. Such an arrangement would require the parents to have a high level of communication and cooperation on a daily basis. Such an arrangement would have the potential to expose the child to a great deal of conflict between his parents, which would be far from ideal and unsettling for the child, who now appears to be settled into his father’s care and into school. An equal time arrangement would also require a notable amount of travel (and related expenses) for one of the parents depending on where the child is to attend school.
Having found that an equal time arrangement is not in the child’s best interests, I must consider substantial and significant time with the non-residential parent. Substantial and significant time is defined in s 65DAA(3) of the Act as including time on weekends and during holidays, as well as time not on weekends or during holidays. It involves a parent in the child’s daily routine and in occasions and events of significance to the child.
The father and the Independent Children’s Lawyer propose that the child live with the father and spend time with the mother at the conclusion of each school week and over the weekend. Each also proposes the child spend time with his mother during school holidays. The mother, on the other hand, proposes that the child live with her and spends time with the father during weekends, on a night during each week and at times during school holidays. The mother’s proposal is more in line with a substantial and significant time arrangement, than that of the father or the Independent Children’s Lawyer.
It is acknowledged that the child was in the primary care of his mother since birth until the making of the interim Orders in February 2014. Since that time, I am satisfied, however, that the child has become settled in the father’s care and that he is now able to have a meaningful relationship with both parents. I am satisfied that the child should continue to live in the father’s care and attend a local public school. I am satisfied that he should spend a greater amount of time with the mother than he is currently spending, but that it be something less than substantial and significant time as defined by the Act, to continue the child’s stability in his father’s care. The child spending substantial and significant time with his mother would involve more changeovers, more travel to and from school and his parent’s homes and generally more disruption for him.
Reducing the child’s time with his mother to something less than substantial and significant time will also importantly reduce the child’s exposure to the risk of psychological harm that may arise from the mother’s anxieties and the potential for the child to be more socially isolated when in his mother’s care.

Conclusion

Having regard to all of the factors relating to the child’s best interests, I am satisfied that it is in the child’s best interests to continue to live with his father but to spend more time with his mother than is currently the case.
As the child is to remain in the father’s primary care, it is considered appropriate that the child attend at a school close to the father’s home, rather than have the child and the father travelling on a daily basis to his current school which is closer to the mother’s residence. The Independent Children’s Lawyer’s proposed orders for the child to commence at G School immediately and to undergo an assessment to ascertain his educational needs is considered appropriate. The Independent Children’s Lawyer’s proposal for changeovers (when not at school) to take place at Suburb B Public Library is also considered appropriate as the mother does not drive and this, in effect, shares the burden of the travel involved to give effect to the orders proposed.
The Independent Children’s Lawyer’s proposal also gives consideration to the child’s religious and cultural upbringing, allowing him to continue to participate in the mother’s religious faith whilst in the mother’s care and to learn about his Country H heritage whilst in the father’s care.
Other than medical matters, I am satisfied that it is in the child’s best interests for his parents to be equally involved in decisions regarding his future.
The Independent Children’s Lawyer’s minute of proposed order seeks two orders in respect of costs. The first is in respect of the Independent Children’s Lawyer’s costs, and the second is in respect of Dr D’s costs. It is appropriate at this time when the parenting matters are being finalised to deal with the Independent Children’s Lawyer’s costs. The Independent Children’s Lawyer seeks that the parties equally share her costs, which total a sum of $10,990 and each pay $5,495. It is appropriate for the parties to bear this cost equally and an order will be made accordingly.
The issue of the mother’s contribution to Dr D’s costs is a matter that will be stood over to be heard together with the outstanding property matters. The fees of Dr D in respect of his costs for attending for cross examination are unknown, and it is noted that the father has paid in the first instance for the two reports of Dr D at a total cost of $19,500. It is appropriate to consider the matter further when the mother’s financial circumstances and the total of Dr D’s fees are known.
Other than as provided for in these reasons, orders will be largely made in accordance with those proposed by the Independent Children’s Lawyer and those orders are set out at the forefront of these reasons for Judgment.

I certify that the preceding two hundred and sixteen (216) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 22 August 2014.

Associate:

Date: 22 August 2014

[2014] FamCA 682

22 August 2014

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Family Law

Civil Procedure

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Procedural Fairness