BINNS & BINNS

FAMILY COURT OF AUSTRALIA

BINNS & BINNS

[2010] FamCA 431

FAMILY LAW – CHILDREN - Best interests - child expressing wishes which are to be given weight - one child has Asperger’s Syndrome - consideration of the risk to the children if they live in the same house as the mother’s partner - impact of the health of each party on their parenting capacities - children have a good relationship with each parent - geographical distance makes a regime of shared care impracticable - each parent says it is not presently possible for them to relocate - children to live with father and spend time with the mother

Family Law Act 1975 (Cth)

APPLICANT:

Mr Binns

RESPONDENT:

Ms Binns

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

3829

2009

DATE DELIVERED:

27 May 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

17, 18, 19 May 2010.

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

COUNSEL FOR THE RESPONDENT:

Ms Bridge

COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER:

Ms Harris

Orders

All previous parenting orders are discharged.
The mother and father have equal shared parental responsibility for the children, A, born … December 1998 and L, born … January 2002 (“the children”).
The children live with the father.
The children spend time with the mother as follows:
(a)Every second weekend from after school Friday to 6pm Sunday;
(b)For the weekend of Mother’s Day, should the children not be in the care of the mother;
(c)For one half of the NSW gazetted school holiday periods as agreed between the parties. Failing agreement the children are to spend time with the mother for the first half in years ending in an even number and for the second half in years ending in an odd number;
(d)From 10.00am Christmas Day to 12 noon Boxing Day in years ending in an even number and from 10.00am Christmas Eve to 12 noon Christmas Day in years ending in an odd number;
(e)By way of Skype (if available) and/or telephone contact at least three times a week;
(f)At such other times as agreed between the parties.
Order 4 hereof shall be suspended on the weekend of Father’s Day and on the following occasions:
(a)
From 10.00am Christmas Day to 12 noon Boxing Day in years ending in


an odd number and from 10.00am Christmas Eve to 12 noon Christmas


Day in years ending in an even number.
For the purpose of changeover pursuant to Order 4(a) above, the mother shall collect the children from school on Friday and the father shall collect the children from the residence of the mother on Sunday. All other changeover arrangements are to be as arranged between the parents from time to time.
The mother shall closely supervise the children whilst they be in her care pursuant to these Orders at all times Mr S is in the vicinity of the children.
Each parent is to advise the other parent and keep the other parent advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable).
Each parent shall ensure that the other parent is kept informed of:
(a)       any medical conditions or illnesses suffered by the children;
(b)       any medication which has been prescribed for either child;
(c)
any social, school, or religious functions which the children are to


attend;
(d)       their residential address;
(e)
particulars of change where any other person resides in the same house


with the children whether on a full time or reasonably frequent basis.
In the event of the children or either of them being hospitalised or receiving medical attention (for anything other than a minor ailment or injury), the parent spending time with the child shall notify the other parent immediately after the first contact with the medical practitioner, medical centre or hospital.
Before any application is made to a court for a variation of these orders to take account of the changing needs or circumstances of the children or of the parties, each party is to take the following steps:
(a)
The mother and the father shall do all things necessary to attend


counselling or mediation with an organisation recognised under the

           Family Law Act
1975 (Cth) or by the Commonwealth Attorney General;


or
(b)
The mother and the father shall participate in family dispute resolution


with a person authorised under section 10G of the Family Law Act


(1975) (Cth).
The court notes the recommendation of Dr R that the mother arrange some counselling to assist her in creating strategies to deal with the possible impact upon the children of Mr S’s personality and also the interaction between A and Mr S.
All outstanding applications are otherwise dismissed and the proceedings are noted as concluded in the Court.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3829 of 2009

MR BINNS

Applicant

And

MS BINNS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

A, aged 11 and L, aged 8 are the sons of Mr Binns (“the father”) and Ms Binns (“the mother”). The parents accept that A suffers from Asperger’s Syndrome. That makes life more challenging for him than might otherwise be the case. That challenge has repercussions for each of the parents and A’s brother, L.
Following the separation, in about mid 2008, the mother committed herself to a relationship with Mr S. Mr S was known to the father prior to the parties’ separation. Mr S had dealt with the father in business as a tradesman and had also carried out work for the parties at their home in J. Mr S has a very unfortunate background as a youth. The extent of that background was disclosed in a file obtained from the tribunal to which Mr S had made an application for “victims compensation”. The material thus obtained also disclosed that Mr S had been diagnosed with a serious mental illness, when assessed by Dr Q, psychiatrist, for the purpose of his claim.
The father, having been acquainted with Mr S prior to the parties’ separation, was aware of some of the detail of Mr S’s past. However, when the full extent or detail of Mr S’s early life became known as a result of this case, the father became seriously concerned as to the impact on the children of either living in a household with Mr S or being in his presence or under his influence.
Having seen both the mother and Mr S together in the court, it was clear to me that they have a very close and loving relationship. Clearly it is a relationship which, if lost to them at this time, would be traumatic for each of them and each would be expected to take considerable time to recover.
A further difficulty in this family is that both the mother and father have suffered from depression. The evidence supports a conclusion that the father has suffered from one episode of depression for which he was hospitalised and received treatment. The mother has also suffered from depression, although her suffering has been more persistent and over a longer period of time than that of the father.
The father lives in the southern suburbs of Sydney. The mother lives some of her time with Mr S in the Blue Mountains and some of her time in shared rental premises in the southern suburbs. The father says that although the mother has suggested he might live in the lower Blue Mountains area and enter a shared care arrangement with the children, he considers this would be impractical given the travel time involved in travelling to his employment.
Mr S has a daughter, G, who is in year 7 at a private school. She has been awarded a scholarship which pays 25% of her fees. There is another benefactor who contributes to her fees. Mr S says that although it may have been possible in 2008 to live in the southern suburbs of Sydney it is no longer the case for him. He has extensive equipment which he uses in his business and which is stored at the house he now occupies. His daughter has started her high school education. She has a scholarship in her present school. He does not think it fair or appropriate to change her school now.
One aspect of A’s condition (about which there is no issue) is that he needs set routines, he needs to avoid significant and frequent changes and he clearly requires significant attention from his caregivers.
The boys love both their parents and have a close relationship with them. A does not have a good relationship with Mr S. A has been resistant to travelling to the Blue Mountains with his mother to spend time with Mr S and G. The mother says that when he is in the Blue Mountains he appears to enjoy himself. A has stated a clear preference not to live with Mr S.
Notwithstanding the current circumstances of the parties and their competing proposals for the children, I have discerned a high level of respect each holds for the other as a person and parent to their children.
It is in those circumstances that the parents’ competing proposals fall for evaluation and determination. If each parent remains living where they would like to live then it seems the only practical result would be for the boys to live predominantly with one parent and spend alternate weekends with the other during school terms. School holidays could be shared equally. Such an arrangement will represent a significant departure for the boys from the routine to which they have become accustomed since the beginning of 2009.
I need to record here, for a variety of purposes, that I restricted the cross-examination of Mr S by the father’s counsel. I was very concerned about the impact upon Mr S of a rigorous cross-examination which delved into a background which Mr S is very much trying to leave behind him. All the evidence before me suggests that Mr S has been able to avoid police action, drug use, drug selling, prostitution and all the other unsavoury aspects of his early life since about 1989. He told me that after he saw the diagnosis of the psychiatrists who provided reports for his victims compensation claim, he was devastated to see that his condition was “without hope” of repair. He said that made him more determined than ever to prove those professionals wrong. He has thrown himself whole heartedly into achieving the twin goals of raising his daughter and being a success in business. He acknowledged that there were aspects of his personality which were likely to be confronting to others. He said he did not avoid conflict but rather confronted it. He stood his ground. However, with the benefit of further consideration of the issue which gave rise to the conflict, if he determined he had been wrong, he was quick to apologise. Examples of this confronting style of Mr S appear in the Department of Community Services (“DoCS”, as it was then known) file tendered as Exhibit “M1”.
Having said all that it was clear to me from Mr S’s evidence that a significant and important ambition of Mr S was to build his self-esteem. It seemed to me from his presentation and evidence that he had been able to build his self- esteem at least to a significant degree. It was also clear that Mr S considered he still had a way to go in that pursuit. It serves no good purpose and is ultimately counter productive to the best interests of the subject children, to allow Mr S’s self-esteem to be undermined by a requirement to visit the very difficult times he has experienced in his life to a degree which is otherwise than absolutely necessary for the purposes of the case. It is further clear, given Mr S has the sole responsibility for the care of his daughter, any event which might interfere in the ability of Mr S to deliver the best parenting he is capable of delivering to G, would not be in her best interests.

background Facts

Where in this judgment, I make statements of fact the same are, unless otherwise specified, my findings of fact.
In 1965 Mr S was born, and suffered a violent childhood. He ran away from home and began living on the streets from 9 years of age. Mr S was sentenced for various offences including break, enter and steal, buggery, trespass, driving offences and possession and supply of cannabis from that time until 1989. In 2007 Mr S was fined for driving with an expired licence.
In 1966 the father was born and is 43 years of age.
In 1991 the father obtained a Bachelor degree from the University of New South Wales and a Masters of Business and Accounting from a Sydney University 1995.
In 1967 the mother was born.
In 1988 the mother obtained a Bachelor of Arts from a Sydney University.
In 1991 the parties married. Their son, A, was born in December 1998 and their other son, L, was born in January 2002.
In 1994 the mother first sought treatment for depression as a result of her marital difficulties. In 2006 she was referred to Dr N under a mental health plan for cognitive behavioural therapy. In 2002 the mother commenced seeing Psychiatrist, Dr C and continued to do so until 2009. Dr C took a history from the mother of depression and anxiety since teenage years, with pre-morbid personality traits of being negative in cognition and being a worrier. She was prescribed psychotherapy and anti-depressant drugs. In 2005 Dr C also diagnosed the mother with Attention Deficit Disorder. In her interview with Dr R the mother told him she had suffered with depression probably from her teenage years. Currently the mother sees Dr C and Dr N (psychologist). She takes Luvox 300 mg.
In June 1997 Mr S’s daughter, G, was born.
In 1997 Mr S was assessed by Dr Q in 1997 in relation to his victims compensation claim and diagnosed with Post-Traumatic Stress Disorder and profound personality disorganisation. He was also diagnosed as chronically depressed and that he was more likely than not to continue to be at risk of acting out. Dr Q suggested treatment over a four year period. Mr S was also assessed by Dr D in 1999 in relation to his victims compensation claim and diagnosed by him to have a severe personality disorder with anti-social and borderline personal traits.
In 2000 Mr S assumed the sole care of G and obtained accommodation in public housing.
In 2001 the parties purchased the property at J (“the former matrimonial home”).
In 2004 Dr O diagnosed A with Asperger’s Syndrome.
In May 2007 the mother decided to separate from the father on a temporary basis. She relocated with the children to the north coast of New South Wales. The mother did not inform the father of her intention to move until she had left the former matrimonial home. She also withdrew $15,000 from the parties’ joint account to support herself and the children. She told Dr R that when she took the boys “I knew he would be angry”.
In 2007 the father purchased a trade business which was unsuccessful and in December of that year he had a nervous break down and was admitted to hospital for 12 days. He was diagnosed with adjustment disorder. From that time until September 2008 the father was not employed and received insurance benefits from a private income policy.
In July 2008 the mother returned to the former matrimonial home and the parties commenced to live there on a week about arrangement, spending alternate weeks with the children. The father resided at a unit owned by his parents on alternate weeks in inner Sydney. The father did not know where the mother was staying at this time.
In 2008 the mother commenced to reside with Mr S in the Blue Mountains. The mother met Mr S in 2007. In August 2008 the mother commenced assisting Mr S develop websites for his business. The mother told Dr R that she has found that she and Mr S were very compatible. She said they do have some differences however they can resolve those well.
In November 2008 the mother introduced the children to Mr S and G.
On 6 January 2009 the parties reached an informal agreement whereby the father would move out of the former matrimonial home and the children would spend every second Friday afternoon from the end of school until Wednesday the following week with him. The children also spent half the school holidays with the father.
On 23 January 2009 the father commenced living in a 3 bedroom house at J and continues to live there. Shortly thereafter he obtained employment as a Business Manager.
In February 2009 the children visited Mr S and G at their home in the Blue Mountains for the first time and the father subsequently became aware of the relationship.
In March 2009 the mother obtained part time work with T Organisation. The mother currently works as a support person with computers.
From February to March 2009 Mr S and the mother searched for accommodation in the Sutherland Shire. At this time the mother and father were advised that no money would be forthcoming from the house sale. In May 2009 the mother informed the father that she intended to marry Mr S and have the children live with them in the Blue Mountains.
In August 2009 G was offered a scholarship to a private school.
On 18 August 2009 a divorce was granted by the Federal Magistrates Court and the mother notified the father’s solicitor of her intention to reside in the Blue Mountains with the children and for the children to attend W School. On 19 September the divorce order became final.
In October 2009 A informed Dr N that he did not like Mr S very much and did not like going to visit him in the Blue Mountains. A continued to be treated by Dr N for some time.
In November 2009 the parents attended a meeting at J Public School in relation to A’s conduct at school and later that month A was reported to have held scissors to his neck and said he wanted to die.
In October 2009 the father’s solicitor informed the mother that the father did not intend to relocate to the Blue Mountains. In November 2009 the mother delivered a letter to the father informing him that she would be relocating with the children to the Blue Mountains in December 2009.
In December 2009 the father filed an Initiating Application for orders restraining the mother from enrolling the children in any school other than J Public School and that the children live with the mother and spend time with the father each alternate Friday until the commencement of school the following Wednesday, each Sunday from 8.30am to 12.30pm and half the school holidays.
In December 2009 the mother moved to the Blue Mountains
The mother filed a response to the father’s application seeking the following orders:
a)In the event that the father remains in the Sutherland Shire the children shall live with the mother and spend time with the father:
i)Each alternate weekend from the conclusion of school Friday until 7am the following Monday.
ii)Half school holidays
b)In the event that the father elects to reside in the Blue Mountains or a school close to W School the children shall live with the mother and spend time with the father.
i)From the conclusion of school each alternate Friday until the commencement of school the following Wednesday.
ii)Each Sunday from 8.30am until 12.30pm.
On 6 January 2010 I made the following orders:
The parties are to continue the parenting agreement reached in January 2009, which provided for the children to live with their mother and spend time with their father during school time each alternate fortnight from after school Friday to before school Wednesday.
c)Shared school holidays.
d)The children are to attend only J public School.
e)The parties and Mr S are to attend upon the Family Consultant.
f)The mother is to decide whether she will take up residence at the former matrimonial home.
At the end of January 2010 the mother elected not to take up residence at the former matrimonial home and moved to V in Sydney’s southern suburbs.

In February 2010, the parties attended upon Ms B for preparation of the Family Report, however, Mr S declined to participate fully.
The father filed an Application in a Case on 12 February 2010 for ex parte orders restraining the mother from bringing the children into contact with Mr S. On 15 February 2010 I made orders suspending the orders dated 6 January 2010 and providing that the children live with the father until further order.
On 17 February 2010 the wife filed a Response to the Application in a Case filed by the father on 12 February 2010, seeking the following orders:
a)Reinstatement of the orders dated 6 January 2010.
b)An order restraining the mother from staying overnight with Mr S whilst the children are in her care.
c)That the mother supervise the children’s contact with Mr S.
d)That any information relating to Mr S’s past be suppressed.
On 17 February 2010 I made the following orders:
The proceedings were to be expedited.
e)That the parents have equal shared parental responsibility.
f)During school term the children are to live with the mother and spend time with the father each alternate week from after school Friday to before school the following Wednesday.
g)During the school week the mother is not to bring Mr S into contact with the children.
h)On the weekend the mother may bring the children into contact with Mr S.
i)During the Easter school holidays in 2010 the children are to spend half the time with the mother and half with the father.
j)The mother is to supervise the children when they come into contact with Mr S.
The matter was listed for hearing on 17 May 2010 for three days.
In his oral evidence, Mr S made it clear he could not now move his residence. He has his business interests and his daughter G is enrolled in a school which is nearby to where he lives. The father says he is unable to move because of his work commitments. If he was to move and live in the lower Blue Mountains area as suggested by the mother, his travel time would increase to such an extent that it would not be possible to spend any meaningful time with the boys during the week.
It is common ground that the father had offered to settle the case at an earlier time on the basis that the children would live with the mother and Mr S in the Blue Mountains and spend three weekends per month with him. The mother refused that proposal because she thought it would not suit A with his Asperger’s Syndrome. In fairness to the father the offer was made at a time prior to the production by subpoena of records relating to Mr S’s claim with the Victims Compensation Tribunal and also his criminal antecedents.

Dr R’s report

When Dr R saw L, L told him he was at J Public School. He said he enjoyed school and enjoyed his friends there. He said he had a good relationship with Mr S. When asked about his relationship with his father he said “Great. It is good and great.” He also said that he had a good relationship with his mother. He was aware that his brother was “mad about going to the Blue Mountains.” He was not opposed to the change himself. If he had to make a choice between parents he would choose his father. He said he has 5 days a fortnight with his father and 9 days a fortnight with his mother. He said, “it is not fair.”
Dr R saw A. He told Dr R he enjoyed playing with his brother L and with G. He said “Mum’s ok.” He said that in relation to his father “he got on extremely well”. He said he liked spending time with his father in particular. In relation to Mr S she said “He’s ok, he is one level down, not great but ok.” He told Dr R he felt angry when “they talk about going to [Mr S’s] place.” “I do not wish to go to [Mr S’s]. I don’t like the trip.” He said he would like to have equal time between his parents. He thought the current arrangement “is not fair for Dad.”
In the joint session between the children, the mother and Mr S, A said “I do not want to move to the Blue Mountains.” The mother responded “I know darling.”
When Dr R saw the mother and father together he noted:
“[t]hey sat in a reasonably co-operative way. They were able to sit and talk about the issue in a remarkably calm way. They said that they were able to agree about discipline and caring for the children. They both supported the other as having an important role in the children’s lives.”
Under the heading “Opinion”, Dr R formed the view that the children had a close and loving relationship with their mother. He formed the view that she was a capable and caring parent. She appeared to have good insight into the children’s needs. There were some areas of concern when she is dealing with her emotional reactions to the father.
Dr R said:
“the separation was handled in an unnecessarily extreme way as [the mother] disappeared without any notice. The mother withdrew the children from school early and sent a SMS and email message to the father explaining that the marriage was over. Within a few months [the mother] was in a new relationship with [Mr S].”
Dr R further said:
“Although [the mother] is a high functioning woman who has held responsible jobs and has managed as a mother; I do have some concerns about her judgment and the dynamics of her personal relationships. I do wonder if there is some truth to [the father’s] observation that [the mother] functions best when she is in a relationship with a person who is dependant on her help…The relationship with [Mr S] appears to be solid thus far and is developing well at present, however, their relationship as a long term one is untested.
It is still unclear as to how well a blended family may be achieved. I believe that the mother is somewhat naively optimistic in expecting the two boys to be able to adjust easily to a new family situation with [Mr S] and his daughter. I believe there are major challenges in this arrangement, especially for [A] with his medical condition despite all the goodwill between the adults.”
In relation to the father, Dr R said he formed the view that the two children had a close loving relationship with their father.
Dr R said:
“despite [the father’s] admission to hospital I believe that he is well psychologically and that there is no sign of mental illness. I believe that his adjustment disorder was a combination of perhaps years of marital tension and difficulty which was then combined with the failure of the business venture.”
Dr R said, “I formed the view that [the father] was an impressive person who has a great deal to offer the children and who could well take over as primary carer.”
In relation to A’s Asperger’s Syndrome, Dr R said “both parents agreed on the management and diagnoses of [A] and want to try and help him with his particular difficulties. They both agree that change and transitions are difficult for him.”
In relation to Mr S, Dr R said;
“I do not believe that he has a severe personality disturbance that makes him a risk or a danger to others.” He said “[h]e appears to have made major changes in his life. [Mr S] appears to have a good relationship with the boys and has attempted to support their relationship with their father. I believe that his intentions are good and that he wants to be a positive influence on their lives.”
In relation to the possible move to the Blue Mountains, Dr R said;
“[L] is likely to make the adjustment much more easily. [A] is very worried and anxious about making the move. I believe that both [L] and [A] would miss their father significantly if they were to move to the Blue Mountains. I believe they would probably adjust in time to living in the Blue Mountains but there would be significant disruption particularly for [A]. The main test would be whether the relationship between [the father] and [the mother] remains solid and whether the complicated dynamics would be manageable.”
In relation to the father, Dr R said “I believe that the father is more likely to be predictable and provide stability in the long term.” He further said:
“I believe the children’s wishes should be respected” and further said “I believe the mother has under estimated the magnitude of this change for the children (that is moving to the Blue Mountains)” and “I believe that there is a significant risk that [A] would not make a positive adjustment and that his anger and difficulties would either be expressed through oppositional behaviour or through difficulty coping and functioning at school. Therefore, the best arrangement for the children is to remain in their same school and maintain the consistent relationship with their father.”
Dr R finally recommended that the children should remain in Sydney where they have stability with their school and consistency with their father. He said “I slightly favour the father as the more stable of the two parents.”

The Oral Evidence of Dr R

When Dr R commenced his oral evidence he was asked whether he had the opportunity to read Exhibits “M1” and “M3” prior to giving that evidence. He said he had read those documents and it had caused him to have further thoughts. He said they affected his view of Mr S. Dr R said that the history provided to him during the interviews for the report showed that Mr S had progressed well over the last 10 years. The DoCS file raises concerns about his parenting capacities and the stability that G has. That could provide significant difficulties for the mother and the children living with him in the future.
He went on to say that the nature of personality disorder is that it is long standing. It is unlikely Mr S would be free of the disorder. However, the stability over the last 10 years suggested there had been an improvement in his condition. Mr S appears to have developed a capacity to regulate appropriate emotional responses. However, that is not always the case as it appears from the exhibits. If he was unable to regulate an appropriate emotional response that could be frightening for the children. Further, Mr S has acted in a very suspicious manner. That would be likely to have some impact on the children if it was exhibited to them.
In relation to the mother, Dr R said that she could receive counselling to assist her in how to protect the children from Mr S’s emotional outbursts and how to deal with A and assure him she will protect him.
In relation to the mother, Dr R said that the children see their mother as having been their primary carer thus far in their lives. If they were to live with the father and only see their mother on alternate weekends, the father could support their relationship with their mother by providing telephone and internet contact for them with her.
Dr R was asked whether he still held the view that Mr S is not an unacceptable risk to the children. He responded by saying “it does seem at times he would be an unacceptable risk e.g. when in conflict. I think the safeguard is the mother being present. In a long term situation I would have concerns about the risk.”
Dr R agreed with the proposition that it is highly likely that at some time in the future there will be an explosive outburst between A and Mr S. He agreed that both A and Mr S can experience difficulty in self-regulating. Dr R said that the mother and Mr S need to have a pre-agreed response to various situations. Dr R agreed with the proposition put by the father’s counsel that, if the mother does not accept that there is a problem with Mr S, then no amount of courses or counselling will help her.
The mother in her questions to Dr R suggested that she and Mr S had some testing of their relationship. Dr R responded by saying “I agree there has been some testing. But not longitudinally, in a situation when all the children are living as part of a family.”

The Family Report

The Family Report was provided by the Family Consultant, Ms B. She signed it on 16 February 2010. Ms B was not required by any of the parties to give oral evidence.
The Report is informative on a number of levels. Firstly, the children’s views. She records that L and A each express clear preferences to remain in Sydney and for arrangements that are similar to those presently in place. A said that his mother’s proposal was unfair to himself and his father. Should his mother move to the Blue Mountains he expressed a stronger preference to be able to live with his father in Sydney, although making it clear that he would miss his mother.
Ms B records that the boys expressed unhappiness and apprehension about any arrangements which saw them living with Mr S or about any arrangement that meant that they would see less of their father each fortnight.
Ms B said, “[A] expressed unambiguous views about future parenting arrangements. Throughout his interview he came across as a confident and matter of fact teenager.”

Exhibits

Exhibit “F1” consists of two reports. One is a report of Dr Q following an interview with Mr S on 23 October 1997. The second report is by Dr K and dated 12 November 1999. Dr Q’s report describes a horrific life experienced by Mr S until the date of interview. The information supplied by Mr S relative to his sexual needs and fantasies is quite disturbing. She diagnosed him with having a personality disorder and post-traumatic personality disorganisation. Dr K considered that Mr S had an anti-social personality disorder. She described it as a “severe personality disorder with anti-social and border personality traits.”
Exhibit “ICL4” is the criminal antecedence of Mr S. This shows a lengthy history of offending between the early 1970’s and 1989. The only notification after that time was in 2007 where Mr S was fined $900 for having an expired license.
Exhibit “ICL6” consists of notes provided by J Public School. Amongst those are notes provided by MC on 24 November 2009. This note relates to an incident at school where A was very distressed and holding scissors to his throat and saying he wanted to die. He was taken to the clinic, calmed down and the teacher spoke to him. The therapist, Ms H, spoke to him individually in the afternoon. Ms H reports that he revealed many fears and anxieties and lots of suicidal talk. She feels that he was quite disturbed. He spoke freely about his worries.
I note that in her oral evidence and/or submission the mother sought to “play down” this report. She said that the incident involving the scissors was not an attempt by A to injure himself. I agree that on consideration of all the notes tendered in Exhibit “ICL6” that view might be available. However, taken as a whole, the incident was a significant one for A and a troubling one for me.
Exhibit “ICL5” consists of notes produced from Dr O. The two tabbed portions of the notes reveal very disturbing aspects of behaviour on the part of A at school.
Exhibit “M1” is the file produced by DoCS in relation to G. This file consists of notifications to the Department by persons concerned for the wellbeing of G. The notifications are largely made as a result of the notifier coming into conflict with Mr S. This file is illustrative of the matters referred to by Dr R in relation to Mr S’s inability to display appropriate emotional responses. It also appears that he has little understanding or concern about the impact on G of his behaviour as reported in that file. The reports compound concern about Mr S’s potential impact on the children.

The Issues

The issues of fact which have been traversed in this case are as follows:
·     The parenting capacity of each party.
·     The health of each party and the possible impact upon their parenting capacities.
·     Is there a risk to either A or L if they live in the same house as Mr S or have contact with him?
·     What is the prognosis for the longevity of the relationship between the mother and Mr S?
·     Are A’s special needs better serviced by living primarily with one parent as opposed to the other?

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (Cth) (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.

Determination of the identified issues

The parenting capacity of each party

This topic is dealt with below.

The health of each party and the possible impact upon their parenting capacities.

This topic was the subject of evidence when Dr R was before the Court. He was questioned about the father’s state of health and the possibility of the father seeking appropriate medical assistance should he become depressed in the future.
Dr R was of the opinion that the father has good insight into depression as an illness and he was confident the father would seek medical assistance if he was to again suffer depression in the future. He said the father had been compliant with medical advice about his depression when he was sick and there did not seem to be any reason to suspect he would not do so again in the future.
The mother has had to manage her depression for a greater period of time than the father. The evidence satisfies me that the mother has managed her mental health well in the past and should be expected to do so into the future.

Is there a risk to either A or L if they live in the same house as Mr S or have contact with him?

I have referred to this issue at length further in these Reasons. In short Dr R was of the opinion that there was an unacceptable risk to the children if their time with Mr S was not closely supervised by the mother. I accept that evidence of Dr R.

What is the prognosis for the longevity of the relationship between the mother and Mr S?

Dr R was concerned about the longevity of the relationship. He considered the relationship has not had an opportunity to be tested in circumstances where there was a blended family living together over lengthy periods of time.
I had the opportunity of seeing each of the mother and Mr S defer to each other in the Court. I formed the conclusion that they do have a very close and loving relationship. As with many relationships the “first blush of love” will be expected to change over time. Whether that happens and, if it does, what effect that might have on the relationship is yet to be seen. It can be said that the relationship will face challenges that many relationships are devoid of. There is the challenge of Mr S’s impetuous reactions to situations which he later considers and if he considers he was wrong he will apologise. Mr S appears to have some difficulty regulating his emotional reactions to situations (see the evidence of Dr R). There is the challenge which the parties will need to address at some time in the future that if it were not for Mr S the mother would most likely be sharing in the care of her children at a much higher level than will be the case while the relationship with Mr S continues. There will be the challenge of dealing with the behaviour of A and the antagonistic, oppositional and hurtful aspect of that behaviour from time to time.

Having said all that, I should record that my impression of the mother and Mr S is that they have no plan to give up on their relationship lightly. They both are aware of some of the challengers which face them in the future.

Are A’s special needs better serviced by living primarily with one parent as opposed to the other?

This is a very difficult issue to determine as it is multifaceted.
There is no doubt that the mother has been the primary caregiver to the children to the point of the separation. Since that time the father’s involvement has increased significantly.
Each of the parents has obvious parenting skills which enable them to manage A. One aspect of his care which has been a challenge to the mother particularly is having A at school on time. The evidence discloses that there have been many occasions when A has been delivered late to school while it has been the mother’s responsibility to have him there on time. Various excuses have been given for his lateness. These include that A “slept in” and also that the mother “slept in”. The father has had only one occurrence of lateness whilst he has been responsible for having A at school on time.
In her oral evidence the mother told me that sometimes A has difficulty sleeping and this results in them both being awake in the night and tired in the mornings. She provided that information by way of explanation for A’s late attendances at school.
A has difficulty in demonstrating appropriate responses to circumstances. His behaviour at times can be quite challenging and oppositional. The circumstances of his living in a house with Mr S might provoke more of that type of behaviour. A has plainly said he does not wish to live with Mr S. If he feels uncomfortable in his living arrangement then it must be anticipated to have some consequence on his behaviour.
Each of the parents appears to have a good understanding of Asperger’s Syndrome. Both support A being treated to lessen the impact on his life of the Syndrome.
A’s wishes in relation to where he would like to live must be taken into consideration. Even if it was the case that the Court concluded that little weight should be given to those wishes, because of his age and stage of development, the fact that A has expressed his preference may have other consequences to his behaviour. Creating a circumstance which caters to his wishes may have a significant impact on his symptoms. Only time will tell.
Dr R concluded that the circumstances of the case warranted a recommendation that the children live with the father. I accept that part of that recommendation reflects a consideration of A’s special needs.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

There is no issue in this case about the children having a meaningful relationship with each parent. Both parents support that concept.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is no allegation that either of the children has been physically harmed. There is no evidence of family violence. The father has indirectly raised a concern that the children may have been psychologically harmed by being kept from him when the mother took the children to the north coast. There is no objective evidence to establish that the children were psychologically harmed in any long-term manner by that action.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The views of the children have been well canvassed in the evidence of Dr R and the Family Consultant. Although L is less resistant to living in a household with his mother and Mr S he nonetheless made it clear to the Family Consultant that he would not want to have his time with his father reduced. A is clear in his statements that he does not want to live in the Blue Mountains with his mother living in Mr S’s house. He has a clear preference to live with his father. Dr R said that the views of A should be given weight.
There is no suggestion by either parent or the Independent Children's Lawyer that the boys should be separated. Given the very strong views of A and the more ambivalent or accommodating views of L I consider that the views of A should be accepted as the views of the boys at this time.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The evidence of Dr R, which I accept, is that the boys have a good and strong relationship with each of their parents. A does not have a good relationship with Mr S. L appears to have a good relationship with Mr S.
The mother says that when the children are with her in Mr S’s house they appear to interact well with Mr S and G. I accept that is her observation however, what choice do the children have in the circumstances? On his own admission Mr S says that people find him frightening. He thinks it is something to do with his face. The children would be expected to have some reservedness in their interaction with him until they have had an opportunity to satisfy themselves that he is not a threat to them.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
I am satisfied that each parent is well intentioned in this regard. I do, however, have some concerns about the mother using the children to “give the father a fright”. This she did when she took the children to the northern coast area and kept them from their father for some considerable time. She thought this might help him to appreciate what he might lose if he didn’t adopt the style of openness in the marital relationship which the mother was craving. I also have concerns about the way in which the mother removed the children to the Blue Mountains area to live with Mr S at a time when she knew the father opposed that and was seeking court orders to prevent the move. She told me she had moved to achieve a strategic advantage.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
I conclude that these children will be adversely impacted upon by separation from each of their parents for any significant period of time. I am satisfied that the children would like to spend substantial periods of time with each parent. If the children could dictate the circumstances of their parents’ separate accommodations I am satisfied they would have their mother living close to their fathers’ residence and in a circumstance where they could stay at their current school. A would not want Mr S to be living with his mother. In those circumstances I am satisfied both children would wish to spend equal time with each parent.
I am satisfied that if A is required to live in his mother’s house with Mr S it is probable that there would be conflict between A and Mr S, not because of any deliberately provocative or malevolent behaviour by Mr S or by A, but rather as a product of their particular personalities. Each has significant afflictions which, in normal interaction are likely to be problematic.
I am also satisfied that the children will be exposed to conflict between the mother and Mr S. The mother has told me that there has been conflict between them however they are able to resolve it. The evidence of the mother suggested that such conflict was not an infrequent or isolated event. There was no asserting that the conflict could be contained to or deferred to a time when the children were asleep or otherwise not present. I was left with the understanding that the time and circumstance of such conflict was unpredictable.
The material in Exhibit “M1” makes it clear that people who have come into contact with Mr S in hospital, schools and the like have found considerable difficulty interacting with him. I consider it likely the children will experience that difficulty at some time in the future, whether they be residing with the mother or spending time with her.
One of the interactions revealed in the evidence involved Mr S making very rejecting comments about his daughter, G. This included a statement that he was ready to sign adoption papers for her. It is not clear if G was present at the time he made those statements. If Mr S can make such statements about someone who he says has effectively been his saviour, someone who gave his life purpose and hope, then how much easier will it be for him to say something hurtful and possibly scarring to the boys?
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There are real practical difficulties and expense involved in implementing a programme for the children to live with one of the parties and spend time with the other. The same practical difficulties would make an equal time arrangement between the parties not reasonably possible. The geographical dislocation of the parties’ chosen residence sites makes it impractical for the parties to be able to service a regime of shared care which involves the children spending time with each parent during the school week. Each of the parents acknowledges that circumstance. The mother has tried to address that impracticality by suggesting the father live in the Blue Mountains, near to her residence with Mr S. There is a further practical difficulty in this case and that is that A finds it difficult to tolerate frequent changes in his surrounds.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The question of parental capacity in this case is connected to insight which each parent has relative to the children’s needs and the ability to deliver those needs. I have formed the opinion that the mother’s insight into the impact upon her children of spending any lengthy periods of time in a household with Mr S is limited. She also appears to not fully appreciate the impact upon the children’s needs of the distance she proposes to place between the area where the parties and children had lived during their intact family life and that which will exist in the future.
During her oral evidence the mother told me that she had received legal advice before moving to the mountains and taking the boys with her. She was told that this would be a good strategic move as once she was there the court might be reluctant to move the boys. This seemed to me to disclose a side of the mother which was not otherwise apparent. It certainly disclosed that she was placing her needs ahead of the children’s interests. At the time she moved she know that the father had advised he would seek orders to prevent the move. He had instituted proceedings. She therefore exposed the boys to conflict between the parents and possible disruption if the court ordered that they be returned to the former matrimonial home or to the area where they had been living and attending school.
Having said the above, I need to here record that the mother is able to appreciate many of the children’s needs and attend to those as the evidence in the case established. She has very good insight into the condition which affects A. She has a good appreciation of the need for the children to spend time with their father. She accepts and supports the boys continuing to be able to build their relationship with the father.
Overall, at this time, I assess the father’s parental capacity to be greater than the mother’s.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The children are both male children. There is nothing further which needs to be referred to under this consideration which has not been already referred to in these Reasons.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Again in this area I find that the mother has failed the children. The removal of the children to the northern coast at the time of separation did not, on balance, illustrate responsible parenting. The mother used the children to meet mostly, but not solely, her own needs. She knew at the time she took that action that the father would be angry. She should have known it would lead to parental conflict. She denied the children society with their father in circumstances where it was not a necessary part of life at the time.
The moving of the children and herself to the Blue Mountains at a time when she knew the father would seek orders preventing the move was unwise and designed to meet her own needs to be with Mr S. She had anticipated that the pre-emptive move would mean the court would allow the children to stay in the new circumstances. She did not comprehend the impact on the conflict between the parents that move caused or was likely to cause had she been successful.
I find that the father is able to demonstrate a better attitude towards the children and be a more responsible parent that the mother at this time.
(j)any family violence involving the child or a member of the child’s family
There is no evidence of family violence.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no family violence order.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In this case it is appropriate to make final orders rather than interim orders. I have confidence that the parties will in the future be able to resolve any further conflict between themselves with the assistance of community based organisations, rather than requiring the court to intervene.
(m)any other fact or circumstance that the court thinks is relevant
There are no other facts or circumstances which need to be considered which have not already been referred to elsewhere in these Reasons.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters. A consideration of the evidence shows that in two circumstances the mother has not acted responsibly as a parent. This has caused the father not to be able to participate in the children’s lives, at those times, in an appropriate manner.
The evidence also discloses that, with the exception of the two incidents referred to in these Reasons, the parents have both been able to implement arrangements which have worked well for the children and ensured that each parent has been available to care for the children at an appropriate level.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these Reasons I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above. I conclude that the balance falls in favour of the orders submitted by the Independent Children’s Lawyer, with some minor modification.
I conclude that as the children will have to live predominantly with one parent and spend time with the other parent, then the parent they should live with predominantly should be the father.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has been no family violence.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case there is no reason for the presumption not to apply and neither parent seeks that.
Consistent with the requests of each party and the Independent Children's Lawyer, I find it is a proper case to make an order for equal shared parental responsibility.

Section 65DAA

This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
There are two main reasons why I do not propose to implement equal time for the children to spend with each parent. Those are; a concern as to the emotional environment the children would be exposed to in the mother’s house because of the presence of Mr S and also, the geographic distance between the parties’ residences and the children’s school. The other reasons why I have preferred the father as the predominant carer for the children in the future are also relevant to this matter.
Both parents acknowledge that it is not practical for the children to be able to attend their present schools and share school week time with both parents. Neither parent seeks such orders in circumstances where the mother will live in the Blue Mountains and the father in the southern suburbs of Sydney.
I propose to make orders which will see the children spend substantial and significant time with the mother. Both my assessment of the best interests of the children and the practical aspects of implementing an equal shared time regime cause me to conclude that equal shared time should not be ordered in this case.

The Orders to be made

The Independent Children's Lawyer proposed a set of orders which provided for the children to spend significantly more time with the mother in circumstances where she lived closer to the children’s school than that proposed should she live in the Blue Mountains. I consider that if I made such orders in this case it may have the effect of placing further pressure on the relationship between the mother and Mr S. It may mean that G would be removed from her school and have her life turned upside down in order to accommodate the mother and her relationship with A and L. That circumstance might then impact upon the relationship between the mother and Mr S and impact upon the subject children.
The mother and Mr S have made it as clear as they can that a move to the city or the southern suburbs thereof, for that family group, at this time, are not possible.
I am satisfied that if circumstances changed in the future and the parties were living in close proximity then the parties themselves could implement an appropriate arrangement for the children to live with each of them as they have in the past. It is to be remembered that if it were not for the mother’s desire to move to the Blue Mountains these parties would probably not be before the Court. It also needs to be remembered that it was only the production of information about Mr S as a result of subpoena issued in the lead up to this hearing that led the father to take a firm stand against the boys living in a house with the mother and Mr S.

The Independent Children’s Lawyer and the father seek an order that the mother closely supervise the children when in the mother’s care and whilst Mr S is in the vicinity of the children. The mother in her oral evidence, whilst not agreeing that such an order would be necessary, conceded that it would not work great hardship on her as, when the boys are spending time with her and Mr S is present, they do things as a family.
I therefore propose to make the orders in relation to parenting as set forth above.

I certify that the preceding one hundred and fifty two (152) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate:

Date: 27 May 2010

[2010] FamCA 431

27 May 2010

Key Legal Topics

Areas of Law

Family Law