BEST & BEST

[2010] FamCA 793

FAMILY COURT OF AUSTRALIA

BEST & BEST [2010] FamCA 793

FAMILY LAW – CHILDREN – Interim – With whom a child spends time

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Best

RESPONDENT: Mr Best

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 3370 of 2009

DATE DELIVERED: 10 September 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Ainslie-Wallace

HEARING DATE: 23 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Messner

SOLICITOR FOR THE APPLICANT: Briggs & Associates Solicitors & Attorneys

COUNSEL FOR THE RESPONDENT: Mr Maurice

SOLICITOR FOR THE RESPONDENT: Abrams Turner Whelan Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Truong
Legal Aid NSW

Orders

Pending Further Order

1. Order 2 of the orders made on 4 May 2010 be discharged.

2. The children J (born … March 1997), A (born … April 1998) and H (born … October 2003) spend time with their mother in a two week cycle during the school term as follows:

   a.In the first week, from Thursday after school to the commencement of school the following Monday commencing 16^th September 2010 and thereafter in alternate weeks.

   b.In the following week from Wednesday after school until the beginning of school on Thursday commencing Wednesday 22^nd September 2010 and thereafter in alternate weeks.

   c.In the week in which the mother does not have the children over the weekend from after school on Monday until 7pm commencing Monday 27^th September 2010 and thereafter alternate weeks.

3. The mother is restrained from bringing the children into the company of her uncle and aunt.

4. Each party is restrained from discussing the litigation with any of the children save and except for the purposes of enabling them to contact or meet their legal representative.

5. Leave be granted to the parties or any of them to restore the matter before me by arrangement with my Associate, to resolve any issues with the wording of Order 2 herein. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3370 of 2009

MS BEST

Applicant

And

MR BEST

Respondent

And

LEGAL AID NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

application for time spent with children

Background

1. In March 2007 Ms Best (“the mother”) became psychiatrically unwell and on 23 March 2007 was admitted to the E Clinic under the care of psychiatrist, Dr R.  She remained there until May 2007 and was then released.   Her condition relapsed and she was readmitted to the Clinic.  Her last admission ended in August 2008.  Over the period of the acute stage of her illness the mother had periods of hospitalisation totalling six months.

2. The illness occurred in the context of a period of unhappiness in the marriage. The parties separated at around the time that the mother was first admitted to hospital.  After her discharge from the E Clinic she lived in a flat not far from the marital home.

3. Before her illness, it seems undisputed that the mother was the primary carer of the parties’ three children: J (born in March 1997), A (born in April 1998) and H (born in October 2003) (“the children”). Mr Best (“the father”) worked long hours in a business in which he and his brothers are partners.

4. It is undisputed that in the periods between her hospitalisations, the mother resumed her role in caring for the children although the extent to which she did so is a matter of dispute between the parties.  It seems that she would come to the home early in the mornings and help the older children get ready for school and would be there in the afternoons when they returned and she cared for the youngest child during the day.

5. The parties’ application was listed for hearing on 23 August 2010.

   
   

   The pressure of time meant that the matter was unlikely to be reached for hearing.  As a result, the parties were directed to file written submissions and the matter would be considered on the basis of the affidavits filed and submissions.

Current Orders

1. In the time since becoming ill and the separation, the parties have agreed as to the time spent by the children with the mother.

2. On 4 May 2010 orders were made (relevantly) as follows:

   2.That (the children) spend time with the mother in a two week cycle during the school term as follows:

   (a)each Monday and Wednesday from after school to 7pm…and each alternate week thereafter;

   (b)from Friday after school to the commencement of school the following Monday…and each alternate week thereafter;

   (c)from the conclusion of school on Wednesday to the commencement of school on Thursday…and each alternate week thereafter.

3. The orders also made provision for the mother to spend time with the children in the July school holidays.

4. It was further ordered that the matter be re-listed “with a view to increasing the mother’s overnight time with the children”.

5. On 23 August 2010 the matter was re-listed for further interim hearing. 

   
   

   The parties agreed on the time to be spent between the mother and the children in school holidays and consent orders were made.

6. The orders of 23 August 2010 also provided that the mother will undergo hair follicle forensic testing and provide the results to the solicitor for the Independent Children’s Lawyer and will continue to see her treating psychiatrist. Both parties were restrained from using drugs other than prescribed.  The mother also agreed to submit herself to urinalysis within

   
   

   24 hours of receiving a request to do so from the Independent Children’s Lawyer and agreed that the results be provided to the solicitors for the Independent Children's Lawyer and the father.

7. Three issues remained for judicial determination: the amount of time spent by the mother with the children during school term, the use by the mother of a house at P while she is spending time with the children and the father seeks an order restraining the mother from bringing the children into contact with her uncle and from taking the children to the residence of that uncle, whether the uncle is present or not.

Parties’ Proposals

1. The mother proposes:

   1.That the children spend time with the mother in a two week cycle during the school term as follows:

   (a) from Thursday after school to the commencement of school the following Monday and each alternate week thereafter;

   (b)each Monday from after school to 7pm; and

   (c)from the conclusion of school each Wednesday until the commencement of school on Thursday

2. The father opposes any further increase in time spent by the mother with the children because he has concerns about her mental health and her alcohol and drug use.  He also believes that she is involving the children in the litigation and that increased time spent with the children will give her further opportunity to discuss the litigation.  The father also alleges that the mother undermines his authority with the children.  

3. The Independent Children's Lawyer supports an increase of time spent between the children and their mother.

The mother’s illness

1. Dr R prepared three reports on the mother’s condition over time. 

   
   

   The first (28 January 2008) noted that when first admitted to the E Clinic, the mother gave a history of becoming increasingly depressed in the three weeks before admission and she had suicidal thoughts, agitation, insomnia and feelings of hopelessness.  He noted a history of gradually worsening mood in the context of her distress at the marital discord that had persisted over the previous 18 months.  The mother’s subsequent admissions resulted from a deterioration in her mental state associated with an increase in her depressive symptoms, suicidal ideation and dissociative symptoms.  He observed that this occurred in the context of marital conflict and distress.  At the time of writing that report, the mother was an inpatient at the clinic.

2. In this report, Dr R said that the mother:

   “…had a complex presentation and will require prolonged periods of therapy and treatment with antidepressant medication…(her) ability to recover and work within the therapy will depend to some extent on the stability of her accommodation and family circumstances.  In my opinion instability and uncertainty in these circumstances has contributed to her relapses and readmission to hospital over the last 12 months.”

3. He expected the mother to continue to improve.  He said:

   “The progress of treatment for the depressive illness and psychological sequelae of the reported childhood sexual abuse is likely to be gradual and there may be periods of relapse of her mental illness in which (the mother) may find it more difficult to provide for the day to day care of her children.”

4. Dr R made a further report on his treatment of the mother on 13 July 2009. He noted that she had a dissociative disorder which manifested itself in her having a number of personalities that affected her behaviour.  Because of this, she had periods in which she behaved abnormally and there were times when she could not remember what she had done.  These periods of dissociation worsened with interpersonal stress and conflict with the father.  He said that when she is stable, she functions normally.

5. In updating her progress, Dr R said that the mother had made significant gains and was increasingly able to control her mood swings.  He said that the periods of dissociation had reduced “very significantly”.  At the time of this report, the mother had stopped her antidepressant medication.  Dr R believed that she “has a good chance of recovery to a more normal level of functioning and mental health.”  He felt that her continued good recovery was very much dependent on a reduction in conflict with the father.

6. In his most recent report of 12 August 2010 Dr R said that the mother had responded well to therapy and no longer fulfilled the criteria for a diagnosis

   
   

   of Borderline Personality Disorder, Major Depressive Disorder or Dissociative Disorder.  He believed that the mother would continue to improve over the next eight months to the point where she would not need any further psychiatric care.  The mother is not using any medication.

7. Dr R said that so long as the mother did not experience “further trauma or is exposed to prolonged levels of moderately severe stress” she is unlikely to have a relapse of the Dissociative Disorder.  The Major Depression could recur but he believed that she has significant insight and understanding into her illness and would seek assistance if that happened.

Single Expert

1. Dr W, a Child and Family Psychiatrist, was engaged to prepare a report on the issues between the family.  In the course of preparing his comprehensive report, he interviewed the parties and the children. 

2. Dr W noted that the children had been exposed to conflict between their parents and “witnessed quite inappropriate behaviour by their mother in terms of the artefacts of self-harm, poorly chosen company and inappropriate substance use.  However, as far as one can tell, this seems to be over now.”

3. Dr W said that the children appear to have little awareness of the mother’s troubles or the basis for the trouble between their parents.  He said that this reflected responsible behaviour by the parents.  He made no direct reference

   
   

   to the children being drawn into the litigation by the mother.  Of course, he did not have the benefit of the father’s most recent affidavit.

4. After noting the parents competing proposals for time spent with the mother

   
   

   in which the mother proposed equal shared care and the father proposed that the mother spend time with the children in the order of four days out of every ten days, Dr W said;

   “To the extent that (the mother) was the primary homemaker until her illness in early 2007 and probably had largely resumed shared care responsibility from about mid 2009, I am inclined more towards the mother’s view although not necessarily quite that far.    I also note that for a family of three girls, time with their mother is particularly important.  If the Court is satisfied that she is making the gains in therapy which appear to be occurring, then an arrangement which involved an extended alternate weekend (say from Thursday evening until Monday morning) with Thursday overnight on the other week and half school holidays might offer her the opportunity for her to spend a large amount of time with the girls and be able to be involved with their schools….”

5. Dr W’s observation of the children was that each has a warm and close relationship with both parents and said: “What was evidenced at the assessment was a great degree of warmth and responsiveness appropriate to the age of the individual child”.

6. While he sought the views of the older two children, he did not ask the youngest because of her age.  The older two expressed a wish to spend more time with their mother.  The youngest enjoys time spent with her mother.

7. I am conscious in making reference to Dr W’s report that it has not been the subject of testing through cross-examination and that there are matters

   
   

   of contest about his conclusions.

Evidence of the parties

1. There are factual disputes between the parties about the care of the children during the mother’s illness and other issues were raised by the father that were not the subject of an answering affidavit by the mother.  Clearly in an interim hearing in which determinations are to be made on untested assertions, where facts are in dispute, the Court cannot resolve those issues.  However, there

   
   

   is much in the affidavits of the parties that is in broad agreement.

2. The mother said that in around December last year she became aware of the impact the conflict between her and the father was having on the children and from then on tried to keep any dispute from the children.  According to the father’s affidavit, this has not necessarily been successful.  He cites a recent incident which, according to his account, appeared to relate to his request that the mother undergo toxicological screening.  However, despite what appears

   
   

   to be some continuing anxieties between the parties, they have agreed to an increased regime of time that the children spend with their mother.   

3. The father asserts that the mother is actively attempting to undermine his authority with the children by not supporting regimes he has put in place.  He also asserts that she is engaging the children in discussion about the litigation. 

Mother’s drug taking

1. There is a suggestion in the material before the Court that the mother, while

   
   

   in the throes of her illness engaged in drug taking.  Dr W referred to records produced from St Vincent’s Hospital Emergency department that related to an episode in March 2009 in which the mother was brought into the Accident and Emergency Department apparently after becoming unconscious after taking street drugs. 

2. The father submitted that the mother has used drugs in the past, has continued to use drugs and has concealed it.  It seems that the mother made no mention

   
   

   to Dr W of the incident in March 2009 and, in November 2009, apparently told a Family Consultant that she had not used drugs for the previous 14 months. 

3. Although not the subject of any evidence, apparently on 23 August 2010

   
   

   at Court the mother conceded that in March and June or July of this year she had taken a “few puffs” of marijuana.

4. This combination of matters leads the father to submit that the mother

   
   

   is actively concealing her drug use and to posit whether the reports of

   
   

   Dr W and Dr R would be different had these matters been known.  Of course this is a matter that will be ventilated at the final hearing.  I am mindful that Dr W had the information about the mother being admitted to hospital in March2009 at the time he wrote his report. However he was not aware of the mother’s concession about marijuana.

5. The father submits that this is an example of her lack of candour about her

   
   

   drug use. That may be the case, however I am mindful that Dr R said that there were times when the mother was ill in which she behaved abnormally

   
   

   and had no recollection of it.  In the circumstances of an interim hearing

   
   

   it is impossible to make a determination on this issue.

6. In the father’s affidavit of 23 August 2010 he refers to a conversation with

   
   

   a person who said; “A friend of mine told me that other day that my weirdo friend is back on the scene looking for drugs”. On the basis of this conversation and the incidents of the past, the father sought a concession from the mother that she have drug testing. 

7. The father alleges that his solicitor’s letter to the mother making this request resulted in a scene in front of the children in which the mother screamed abuse at him.  There is no evidence from the mother about this and I can make no finding about it, however the mother has agreed to undergo hair sample drug testing and random urinalyses and consent orders were made to that effect.

8. A parent who is drug affected poses a risk to children in his or her care.  In this case there is a concern that the mother might have continued to use drugs.  As a result of her preparedness to have hair follicle testing, undergo random urinalysis and her willingness to continue her treatment and therapy with Dr R, I am of the view that there does not appear to be an unacceptable risk to the children in spending time with her.

Associations with Family Members

1. In the course of her therapy with Dr R, the mother revealed that as a child she had been the victim of sexual abuse by both her uncle and her father. 

   
   

   It appears from the material before the Court that she has little or no contact with her father and has not allowed the children to be alone in his company.  The mother confronted her father with the abuse and told her mother about it.  It does not appear that she has done that in relation to her uncle.

2. The father raises a concern in his affidavit that the children have been in the company of the uncle although it is not asserted that the mother has left them

   
   

   in his sole care.  It appears that the contact occurred in the context of a family wedding at which the mother, children and her uncle and aunt were present.  The father now seeks an order that the mother not attend the uncle’s house even if the uncle is not present.

3. The circumscribed nature of the proceedings means that there is no affidavit from the mother in relation to this concern or the circumstances in which she and the children were in the presence of her uncle.  It was however submitted that to restrict the mother from contact with her aunt would cause her some estrangement from her wider family.  That is a matter that may need to be considered at the final hearing of the remaining issues between the parties.

4. However, the fact remains that the mother says that she was the victim

   
   

   of sexual abuse at the hands of her uncle.   

5. The father’s concerns that the children not be exposed to the uncle appear well founded.  Although it may pose some restriction on the mother in associating with her extended family while with the children, I am of the view that

   
   

   it is appropriate that she not bring the children into contact with her aunt or uncle pending further order.

Increase in time spent with the children

1. The father opposes the mother’s application for increased time during

   
   

   the school term because of his concerns that she has not made sufficient improvement in her mental health.   In support of these concerns, the father notes that there have been times when the mother’s behaviour has been

   
   “up and down”

   and says that she has been abusive to him. The father said that there have been fewer arguments between them since January 2010.

2. The father argued that Dr W’s recommendations for increased time spent between the mother and the children should be only considered in the context of a final hearing and are conditional on the mother continuing to make gains in her recovery.   It was said that the mother has not made the suggested gains in her therapy and cited her apparent concealing of her past drug use as reflective of this. 

1. It is to be borne in mind that Dr R’s most recent report was predictive in the sense that he says that should the mother continue to progress as she has,

   
   

   she may not require treatment and consultation from April 2011.  It could not be said that there are no lingering concerns for her continued progress. However it was not suggested that she had made no progress in recovering her mental health but that she had not achieved full recovery.

2. The issue of the mother’s mental health and its prognosis will be a matter for examination at the final hearing. I accept the submission of the father that the reports to which I have referred have not been the subject of examination.

3. However, on the material before me, it seems that the mother has made significant progress in her recovery and, together with the safeguards provided by the drug testing orders and her continued attendance on Dr R, I am of the view that her current mental health does not provide a risk to the children nor does it provide an impediment to increasing the time spent between the mother and the children if otherwise appropriate.

4. The father complains that the mother does not impose the same level

   
   

   of discipline on the children as he does and will not carry out his regime when she is spending time with the children.   He cites his rules for the children’s use of internet socialising sites.  Rather than seeing this as perhaps indicative that the mother has different but perhaps valid views on the subject, the father

   
   

   says that this represents an undermining of his authority.  There is no evidence from the mother directly on this issue and its determination will abide a future hearing. 

5. Dr W directly addressed this concern of the father.  Dr W referred to it and said “…but I do not think that that has occurred to a significant degree.”

6. On the limited evidence before me I can make no finding whether the mother

   
   

   is deliberately undermining the father’s authority with the children.

7. The father said that the mother is attempting to draw the children into the litigation and cites conversations he has had with the children that lead him

   
   

   to that view.  Again this is a matter on which there is no evidence from the mother and I cannot find that she had discussed or attempted to discuss the litigation with the children. Clearly were it to happen it would not be in the interests of the children.  I will make an order that neither parent discuss the litigation with the children save for the purposes of facilitating them speaking to or meeting with their lawyer.  

8. The effect of the mother’s proposals is to increase her time with the children

   
   

   by commencing the weekend time with them after school on Thursday each alternate weekend.  The present orders provide that she start her weekend time with the children on Friday.

9. It is apparent that both parents and in particular the father have gone to some lengths to ensure that the children’s relationship with the mother was retained during her illness and the accommodation of the contact regime since separation has fostered and encouraged the warm and positive relationships observed by Dr W.   They have managed to contain their dispute so as not to involve the children.  If there is substance in the father’s concern that the mother is discussing the litigation with the children, the order I propose should allay those concerns.

Discussion

1. Since the upheaval of the mother’s illness and the separation of the parties, each has in my view made a concerted effort to preserve and foster

   
   

   the children’s relationship with each other.  They should be commended for that and the views of Dr W about the children’s relationship with each parent is testimony to that.

2. Although the mother appears to have made significant steps in her progress towards mental health, it could not be said on the material before me that she

   
   

   is wholly recovered or that there are no concerns for a relapse.  Her past illness seems to have been associated with drug use and abnormal behaviour and the father has concerns that the mother may continue to use drugs. 

3. In coming to a determination of this matter, I have considered s 60CC of the Family Law Act 1975 (Cth) (“the Act”) and note that there is no dispute in this matter that there is a benefit to the children in enjoying a meaningful relationship with each parent as appears they currently do. I am mindful too

   
   

   of the need to protect them from the risks referred to in paragraph 60CC(2)(b) of the Act.

4. I take into account that both of the elder children expressed the view to

   
   

   Dr W that they would like to spend more time with their mother. Each child has a warm and positive relationship with both parents.

5. It seems on the material before me that each parent has the capacity to foster and encourage that relationship as they have done in the past.  The father believes that the mother has not supported his parenting strategies and hopefully in the future there can be better communication between the parties as to the appropriateness of their respective rules for the children and an accord be reached.  However, in the context of this case as revealed in the evidence, I do not regard this to pose a significant impediment to the fostering of the relationship with each parent. 

6. In considering whether the mother in particular has the capacity to provide

   
   

   for the children’s needs, including emotional and intellectual need, I have taken into account the father’s own affidavit that since the orders of December 2009, there have been fewer confrontations generally and it seems that the parties are able to contain their dispute and arrange the change over of contact arrangements cordially.

7. In all of the circumstances of this matter on the basis of the material before me, I find that it is in the best interests of the children that they spend additional time with their mother during school time and I will make an order in terms proposed by the mother.

P Property

1. It seems that the parties have had access to a property at P.  The mother seeks orders that the father make it available to her when she is spending time with the children.  This has been commonplace in the past and the children spoke to Dr W about their pleasure of being in P.

2. The father deposes that the property is held by a family trust.  It was argued that he has no absolute right to occupy the property nor has he exclusivity of use and has no right to exclude others entitled to use the property.  Thus it was submitted that he could not be subject to an order that he make the property available to the wife to use while she is spending time with the children.

3. That being the case, and there is no evidence on which I could find that it was not, I cannot make the order sought by the wife.

4. It is apposite to note that since it is tolerably clear that the parties have both enjoyed the use of the property at times when they were spending time with the children and since the children apparently enjoy it there, it would be unfortunate if this was unreasonably denied. However, in the circumstances, the use of the property must be a matter of consensus and negotiation between the parties.  

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on

10 September 2010

Associate:     

Date:              10 September 2010