Bostoi and Bostoi
[2010] FamCA 992
•27 October 2010
FAMILY COURT OF AUSTRALIA
| BOSTOI & BOSTOI | [2010] FamCA 992 |
| FAMILY LAW – CHILDREN – With whom children live – Mental health concerns in parents – Best interests |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Bostoi |
| RESPONDENT: | Mr Bostoi |
| FILE NUMBER: | SYC | 2851 | of | 2009 |
| DATE DELIVERED: | 27 October 2010 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Stevenson |
| HEARING DATE: | 25 February 2010 25,26,27,28 May 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Nash |
| SOLICITOR FOR THE APPLICANT: | Feeney Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Rees SC |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Falloon |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid NSW Sydney |
Orders
That all existing orders in relation to the children
C born on … September 1997 and
L born on … April 2001
are discharged.
2.1 The parties will have equal shared parental responsibility for the children.
2.2The parent with whom the children are living from time to time pursuant to these orders has sole responsibility for making decisions as to their day-to-day care, welfare and development.
2.3In particular with respect to shared parental responsibility, and without derogating from the meaning given to those words in the Act:
2.3.1each parent shall promptly advise the other about any matter coming to his or her attention pertaining to a child’s progress or development, or any decision required to be made about a child’s activities or general care including health care;
2.3.2the parents shall at all times acknowledge that each of them is entitled to:
attend any activities at a child’s school which parents are invited to attend;
attend any extra-curricular activity in which a child is participating;
be consulted before any decision is made about matters going to a child’s welfare including but not limited to major long-term issues such as education, major medical decisions and religious instruction.
2.3.3in the event that a child is admitted to hospital, and irrespective of the length of that admission, the parent having the child’s care at that time shall as soon as is reasonably practicable provide the other parent with all relevant information, and ensure that the treating professional record the name and contact details of the other parent;
2.3.4except in the event of an emergency requiring immediate attention, neither parent shall confirm any medical or dental appointment for the children without first advising the other parent about:
the reason for the proposed consultation; and
the local of the medical and dental facility; and
the time and date of the appointment.
The children live with the mother at all times other than the periods specified in order 4, during which they will live with the father.
The children live with the father:
4.1during school term time, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday
4.2during school term time, from the conclusion of school on Wednesday until the commencement of school on Thursday in each other week
4.3for one half of each school holiday which falls at the end of Terms 1, 2 and 3, being the first half in odd-numbered years and the second half in even-numbered years unless otherwise agreed in writing
4.4for one half of school holiday which falls at the end of Term 4, being the first week and each alternate week thereafter until L completes his first year at high school and thereafter for the first half in odd-numbered years and the second half in even-numbered years, unless otherwise agreed in writing
Notwithstanding any other order the children live with the father on the following special days:
5.1from 9:00am until 6:00pm on each Fathers Day
5.2from 6:00pm on Christmas Eve until 6:00pm on Christmas Day in even-numbered years
5.3from 6:00pm on Christmas until 6:00pm on Boxing Day in odd-numbered years
5.4from 9:00am until 6:00pm on Orthodox Easter Day in odd-numbered years
5.5from 9:00am until 6:00pm on Catholic Easter Sunday in odd-numbered years
unless otherwise agreed in writing.
The children live with the father from 9:00am until 6:00pm on two additional days of significance to him per calendar year, provided that he furnishes to the mother no less than 28 days written notice of the dates when he intends to exercise this provision and provided that the father does not nominate either child’s birthday, the mother’s birthday or any day specified in order 7.
Notwithstanding any other order the children will live with the mother on the following special days:
7.1from 9:00am until 6:00pm on each Mothers Day
7.2from 6:00pm on Christmas Eve until 6:00pm on Christmas Day in odd-numbered years
7.3from 6:00pm on Christmas Day until 6:00pm on Boxing Day in even-numbered years
7.4from 9:00am until 6:00pm on Orthodox Easter Day in even-numbered years
7.5from 9:00am until 6:00pm on Catholic Easter Sunday in even-numbered years
unless otherwise agreed in writing.
The children live with the mother from 9:00am until 6:00pm on two additional days of significance to her in each calendar year, provided that she furnishes to the father no less than 28 days written notice of the dates when she intends to exercise this provision and provided that the mother does not nominate either child’s birthday, the father’s birthday or any day specified in order 5.
Neither parent denigrate or comment on the other parent’s mental health in the presence or hearing of the children.
The parties execute changeovers at the children’s school on school days or on non-school days:
10.1the mother collect the children from the front of the father’s home at the commencement of all periods of time with her, and
10.2the father collect the children from the front of the mother’s home at the commencement of all periods of time with him
unless otherwise agreed in writing.
Each of the parents allow and facilitate reasonable telephone contact for the children with the other parent.
Each parent shall do all things necessary on his/her part to ensure that:
12.1the children attend for confidential counselling with a suitably qualified professional nominated by the ICL in consultation with the single expert Dr Q (“the children’s counsellor”)
12.2the children meet with the children’s counsellor as often as the counsellor recommends;
12.3the children’s privacy with respect to their counselling is respected, specifically that neither parent shall ask or encourage the children to disclose anything they wish to discuss with the children’s counsellor, or what was said during discussions between the children and the children’s counsellor;
12.4each parent is restrained, in proceedings pursuant to the Family Law Act, from requesting the issue of a subpoena on the children’s counsellor either to produce documents or to give evidence.
The ICL has leave to provide a copy of the judgment to the children’s counsellor and the parent’s counsellor.
Within 7 days of the date of these orders the parents arrange an appointment with the Independent Children’s Lawyer (“ICL”) so that she may explain the effect of these orders to the children.
Within 30 days of the date of these orders each parent:
15.1pay to the Legal Aid Commission of New South Wales a sum of $2,530 on account of the outstanding fees of Dr Q
15.2pay to the Legal Aid Commission of New South Wales an amount already advised on account of his and her share of the costs of the ICL.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.
IT IS NOTED that publication of this judgment under the pseudonym Bostoi & Bostoi is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: SYC 2851 of 2009
| MS BOSTOI |
Applicant
And
| MR BOSTOI |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings concern parenting orders in relation to the two children of Mr Bostoi and Ms Bostoi:
C born in September 1997 (13) and
L born in April 2001 (9).
The applicant mother sought that she have sole parental responsibility and that the children live with her. She proposed that they spend time with their father each fortnight, from the conclusion of school on Friday until 6.00pm on Sunday, and in alternate weeks during school holidays. The boys would spend time with each of their parents on special occasions.
The respondent father sought that he and the mother have equal shared parental responsibility and that the children live with him. They would spend time with their mother each Wednesday afternoon, on alternate weekends and for half of all school holidays. The boys would spend time with each of their parents on special occasions.
The Independent Children’s Lawyer (“the ICL”) proposed that the parties have equal shared parental responsibility and that the children live in a week-about arrangement during school term time. They would spend half of all school holidays with each parent, on an alternate week basis until L completes his first year at secondary school.
The psychiatric condition of each of the parties, and any consequent impact on their parenting capacity, were significant issues in the proceedings. The mother conceded that she suffers from a mental illness and volunteered that she has consulted a psychiatrist, Dr J, since 1998. I will consider below the evidence of Dr J and the single expert, Associate Professor Q (“Dr Q”), as to the correct diagnosis and impact on her parenting capacity.
In Dr Q’s first report, dated 13 December 2009, she expressed concerns that the father may suffer from a mental illness. She opined that he may be afflicted with paranoia and thought disorder and experience delusions. Alternatively, Dr Q was concerned about personality traits in the father. In her view he “is an extremely controlling and dominating character; this kind of profile is frequently observed in an abusive spouse”.
Dr Q’s opinion as to the father’s psychiatric state and/or personality traits was disputed by Dr W, who assessed him on 16 December 2009 and provided a report dated 21 December 2009. Dr W has since seen the father on seven additional occasions. Doctors Q and S conferred and produced a joint statement. They reached no agreement as to any psychiatric disorder or personality traits which would impact on the father’s parenting capacity.
Background
The father, who is now 41, and the mother, aged 38, married and began to cohabit in 1995. They lived with the paternal grandparents until 2002 or 2004, according to the father and the mother respectively. They then moved into their own accommodation very close to the home of the paternal grandparents.
The father was in full-time employment from the date of the marriage until July 2007, when he established his own business known as “B Proprietary Limited”. He has office premises in suburban Sydney but is able to do a considerable amount of work from home.
The mother too was employed during the marriage, taking a few months out of the workforce when each child was born. She also studied and recently obtained a graduate certificate in management from Charles Sturt University.
The mother first saw Dr J on 14 September in 1998. He noted that she told him that life in the home of the father’s parents caused her much unhappiness. She informed Dr J that “she explodes a lot” and was “hurt so much by them”. At this time Dr J diagnosed a “relationship problem”. Subsequently, he formed the view that she suffers from “a psychotic illness characterised by paranoia…best described as a Delusional Disorder Persecutory type (DSM-IV)”.
On 1 November 2007 an Apprehended Violence Order was made against the father for the protection of the mother for a period of 12 months. She alleged that he jumped on her and held her wrists down on a bed. The father denied that he did so and maintained that he consented to the order in an attempt to save the marriage.
The mother claimed that the parties separated under one roof on 1 March 2009, when the father called the police after an argument. The father denied that the parties separated in March 2009. He claimed that the mother’s statements to that effect were “made in the context of [her] complex mental health history”, thus he accorded them “no undue significance”. A COPS entry dated 2 March 2009 recorded, however,: “…victim stated that the marriage was disintegrating to a point to where he was certain they will separate but are still living together…until arrangements could be made”.
In the week commencing 9 April 2009 the father called the Acute Care Team on more than one occasion. A member of that team contacted Dr J on 14 April 2009, after the father complained that the mother had behaved angrily and aggressively toward him. The next day Dr J spoke to a member of the team and provided a detailed history of the mother’s psychiatric condition. Dr J noted that he spoke to the father at this time and told him that the mother required an increased dosage of medication.
On 18 April 2009 the father took the children to a soccer match. He claimed that the mother became very angry when they returned and screamed at the children: “Your dad has told them that I’m mental and I have to go and see them”.
The father contacted the Department of Community Services (“DoCS”) during April and May 2009. The Departmental file contained notifications on 13 April 2009, 24 April 2009, 26 April 2009 and 3 May 2009, to the effect that the mother was behaving aggressively due to “mental health issues”. On two of these occasions the caller indicated that the mother suffered from schizophrenia.
A DoCS note of 7 May 2009 read in part: “he began to contact Dr [J] to discover more about his wife’s mental state and was told by Dr [J] that she was schizophrenic with severe paranoia”. Dr J denied that he ever made a diagnosis of schizophrenia. He refuted the father’s allegation that he told him that the mother suffered from “manic depression and paranoia”.
A DoCS officer noted on 7 May 2009 that the father said that he “wanted to have the mother admitted to a psychiatric ward”. The father admitted that he expressed such a wish.
On 8 May 2009 the father took the children to the home of a neighbour, where they spent the night. He did not tell the mother that he had done so. The next morning she discovered that they were missing and called the police, who attended the family home.
A police officer told the mother that the father had applied for an apprehended violence order and that she could not see the children until those proceedings had been determined. She elected to leave the premises, so that the children could return to their home. She has since lived with her parents in the same suburb, some two to five minutes away from the family home.
The children had no contact with their mother for the next seven weeks. They were unable to see her or give her presents on Mother’s Day. They began to see her again only after interim orders were made by consent on 24 June 2009. These orders gave the children time with their mother each weekend from 5.00pm on Saturday until 5.00pm on Sunday and each Wednesday night. It was a condition that the children sleep at the home of the maternal grandparents.
In July 2009 the mother requested, through her solicitors, that the children spend alternate weeks with each parent during the upcoming school holidays. She offered to take leave from work for that purpose. The father refused this request and allowed the children to spend only an additional six hours on Thursday with their mother during these school holidays.
On 16 December 2009 these interim orders were varied, so as to provide that the children live with each parent on a week about basis. They continued to sleep at the home of the maternal grandparents while in the care of their mother. These orders followed the release of the first report by Dr Q, in which she expressed concerns as to the father’s mental health.
The Evidence and Witnesses
The applicant mother relied on the following affidavits:
1. The mother sworn 13 May 2010.
2. Ms G (mother’s maternal aunt) sworn 16 February 2010.
3. Mr G (mother’s uncle) sworn 16 February 2010.
4. Mr W (mother’s work supervisor) sworn 5 August 2009.
5. Ms P (mother’s aunt) sworn 3 May 2010.
6. The maternal grandmother sworn 13 May 2010.
7. Dr J (mother’s psychiatrist) sworn 3 May 2010.
The respondent father relied on the following affidavits:
1. The father sworn 4 May 2010.
2. Dr S (father’s psychiatrist) sworn 27 January 2010.
3. Dr M (family general practitioner) sworn 30 April 2010.
4. Mr K (family neighbour) sworn 3 May 2010.
5. Ms B (children’s school principal) sworn 12 February 2010.
6. Ms T (paternal aunt) sworn 20 February 2010.
I had the benefit of two reports by the single expert, Dr Q, dated 13 December 2009 and 19 May 2010. As noted, Doctors Q and S conferred and produced a joint statement.
Approach To These Proceedings
In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the children who are the subject of the proceedings. Part VII of the Family Law Act sets out a number of mandatory considerations which prescribe the pathway to that decision.
Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. Section 60CC(4) requires the court to consider also the extent to which each of the child’s parents have fulfilled, or failed to fulfil his or her responsibilities as a parent.
The court must have regard to the objects of Part VII, as set out in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child’s right to enjoy his or her culture.
Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:
“[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”…
In Cowley v Mendoza [2010] Fam CA 597 Murphy J set out a “summary of principles”, drawing together the relevant legislation, the decision of the Full Court in Goode and Goode (2006) FLC 93-286 and the judgment of the High Court in MRR v GR. I extend my gratitude to his Honour for this analysis, which has figured heavily in the approach which I now set out to my determination of these proceedings.
When a court makes or contemplates making a parenting order, it must:
·apply the presumption of equal shared parental responsibility
·determine whether there is abuse of a child or family violence, which means that the presumption does not apply
·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility
·if the presumption applies:
¨ determine whether it is in the child’s best interests for there to be an order for equal time with each parent
¨ make findings as to the matters set out in section 65DAA(5) which are:
Reasonable practicality: In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
¨ as a result of this enquiry, make findings as to whether an equal time order is reasonably practicable
¨ if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order
·if there is no equal time or substantial and significant time order, proceed to determine what orders are in a child’s best interests
The Mental Health and Personality Traits of Each of the Parties
As noted, the mental health of each of the parents figured heavily in these proceedings. Essentially, the mother alleged that the father’s psychiatric state and/or his personality traits will place the children at risk of psychological harm if they spend large amounts of time in his care. She claimed that the children’s relationship with her would be jeopardised by his consistent and sustained attempts to portray her as a person with a serious mental illness, who constitutes a physical and emotional danger to them. She also alleged that his controlling personality would seriously inhibit their autonomy. The father alleged that the mother suffers from a mental illness which exposes the children to risk of physical and psychological harm. It is thus necessary to consider very carefully the evidence in relation to the psychiatric state and personality traits of each of the parents.
The Mother’s Psychiatric Condition
The mother’s treating psychiatrist, Dr J, provided a report dated 26 July 2009. As noted, he first saw her on 14 September 1998 and formed the view that she was experiencing “a relationship problem”. He next saw her on 26 February 1999, when she reported feeling “very stressed” and was experiencing symptoms of depression. She was suffering mild paranoid symptoms, in that she believed that people were talking about her. Dr J prescribed epilim, a mood stabiliser and mild sedative.
After three weeks on this medication the mother said that she “felt more in control” and was described as “much better” by Dr J. She did not see Dr J again until 25 October 2001, by which time she had stopped taking epilim due to her second pregnancy. Doctors J and Q were both of the view that it was medically appropriate for the mother to stop taking this drug during her pregnancy.
On 24 December 2001 when the mother presented to Dr J “she was not doing well”, in his opinion. She had experienced a number of explosive episodes and vivid dreams abut “the devil”. She was “predicting bad things about her life” and again suffered a paranoid belief that people were talking about her.
Dr J agreed in cross-examination that the mother’s presentation on 24 December 2001 was “indicative of a major mental illness”. He prescribed one milligram per day of risperidone, an anti-psychotic medication, and continued the dosage of epilim. By 17 May 2002 Dr J had formed the view that she had good insight into her illness. He explained to her that she needed to remain on medication for the rest of her life.
On 16 August 2002 the mother presented to Dr J as “paranoid and angry and lacking in insight”. He doubled the dosage of risperidone and, by 18 October 2002, there was an improvement in her condition.
Dr J next saw the mother in November 2003. She was concerned about weight gain, a side effect of her medication, and he reluctantly agreed to halve the dosage. In March 2004 Dr J formed the view that her insight was limited, noting that she believed her problems were due to living in the home of the paternal grandparents and the father’s anger with her. Dr J considered that she “had been good” throughout 2004, until shortly before Christmas.
On 27 January 2005 Dr J urgently reviewed the mother, after work colleagues became concerned about her condition. He found her to be ambivalent, with a blunt affect and in a catatonic state. She reported feeling stressed with her children. Dr J described this incident as “a short psychotic episode”. He doubled her dosage of risperidone and added an anti-depressant medication. The mother recovered from this episode and was described by Dr J as “doing well” when he next saw her on 6 December 2005.
On 12 November 2007 the father rang Dr J. He said that the mother had stopped taking her medication and was “causing chaos”. Dr J saw her on 22 November 2007, after she had resumed taking risperidone. He assessed that she was neither paranoid nor thought disordered and noted that there was “interpersonal conflict” between the parties.
In May 2008 the father contacted Dr J after an argument between the parties. He suggested that the father ring the Acute Mental Health Team. Dr J saw the mother on 12 June 2008 and commented in his notes: “well treated paranoid delusional disorder”. The mother told him that she and the father argued over financial issues.
Dr J next saw the mother on 12 December 2008 and observed that she “appeared well”. She again complained about problems with the father and ongoing conflict over financial issues, to the point where she considered ending the marriage. She was taking one milligram of risperidone per day and understood that she needed to continue on this medication.
Dr J next saw the mother on 8 May 2009 and noted:
“She told me ‘I ended my marriage on first March’. They had an argument. She said he told her that she was unattractive and didn’t look like other girls. She had then been told by her brother that her husband had stated: ‘I’ll kill everybody if she leaves’. [The mother] then told me that her husband had told their children that she had a boyfriend and she was ‘a psycho’. There were a number of calls to the mental health team. There were arguments. ‘He tormented me’. She slapped him. The police and an ambulance had been called - they were told she was suicidal. They left. When I saw [the mother] her mental state appeared to be normal. She was pleasant and friendly. Her mood was euthymic. She denied hearing voices. There were no paranoid delusions. She had no suicidal ideation. Her insight appeared to be good. I asked her to continue the risperidone at 1 mg at night. I wasn’t to review her for six months.”
Dr J reported that the father rang him in the evening of 8 May 2009. He noted:
“I told him that [the mother] had presented well and was not psychotic earlier that day. He agreed that the marriage was over. I told him that most of their issues were of a domestic nature not psychiatric…If he was concerned about his children’s welfare then he should contact DoCS. If he was concerned by violence he should contact the police. I suggested that separation would enable him to be in control of the situation with his children for 50% of the time. I suggested calling a family lawyer to institute proceedings. I, however, had my concerns as there were cultural and possibly gender issues”.
In relation to this telephone conversation Dr J noted:
“He finds it hard to accept all of the above. He projects his concerns onto children. There is a cultural problem I believe and possibly a gender issue – masculinity, role of husband. Need to be careful he isn’t also paranoid”.
In his report dated 26 July 2009 Dr J set out his assessment of the mother as follows:
“Diagnosis
[The mother] has a well treated psychotic illness characterised by paranoia. It would best be described as a delusional disorder - persecutory type (DSM IV). She has never met criteria for schizophrenia, which demands serious dysfunction, even though she has had other symptoms than delusions.
Medication and Compliance
[The mother] has been prescribed three medications by me over the eleven years I have been treating her. She did not need the anti-depressant (escitalopram) for vey long. She did not need the mood stabiliser (sodium valproate) after she commenced risperidone.
I have prescribed her risperidone at two milligrams a day. However, there have been lengthy periods of time when she has been able to remain well on one milligram a day. When she is stressed she is less likely to decompensate on two milligrams a day. As there have been lengthy periods when I have not seen her it is difficult to properly comment on her compliance. Her reasons for taking less medication are side effects. Risperidone does cause weight gain and menstrual irregularities.
Treatment after ten years
[The mother] needs ongoing treatment as she has had a number of episodes of her delusional disorder in the time I have seen her. The most serious was in early 2005 when she was catatonic. These episodes occurred when she was either non-compliant or stressed. She has a genetic vulnerability to mental illness. His compliance in recent years has been good.
Ability to function
She has been very functional over the years. She had rarely had any days off due to her illness. I have no evidence that she has been a poor mother. I have had no evidence that the children have ever been at risk from their mother. I believe that she is able to care for her children. She has been able to perform in her job for many years.”
Dr J saw the mother on 3 December 2009. In a letter to her solicitor dated 24 January 2010 he updated his report as follows:
“I had not seen her since the breakdown of the marriage. During that time the children had mainly been with their father. [The mother] told me that she had the children on Wednesday and Saturday nights. There had been a number of court appearances. She had taken out loans to continue the legal process. This was a very stressful period. In spite of these stresses I found [the mother] to be well. She was concerned about the welfare of her children. She was positive. She had completed her studies in management. She had made significant efforts to lose weight by attending Weight Watchers and a gym. She denied any hallucinations or paranoia. She assured me she was taking her medication. Her mood was stable.
Her next appointment with me is listed for 5.00pm Wednesday 23 June 2010. It will be for review and a prescription.
I had no reservations about [the mother] at the recent consultation.”
In his oral evidence Dr J addressed the father’s allegation that he told him that the mother suffers from “manic depression and paranoia”. He said that he did not recall doing so and that it was very unlikely, because he never made this diagnosis. He agreed that he would have told the father that the mother requires medication to manage her condition.
Dr J denied the father’s assertion that he said to him, in about May 2008: “There’s not much more I can do for her, you should see Dr [M]. She needs to be compliant with her medication”. He said “it would be totally out of character of me to say this. It’s just not the way I run my practice.” Dr J pointed out that he was overseas between 16 and 25 May 2008 and during that period Dr R maintained his practice. He said that the father spoke to Dr R in May 2008.
Dr J said that bi-polar disorder was an early differential diagnosis, which he abandoned. He also made an early provisional diagnosis of “delusional disorder/schizophrenia” which was not his ultimate assessment.
Dr J agreed that he recommended that the mother take a higher dose of risperidone. He said that he preferred her to take a smaller dosage rather than no medication at all. He agreed that she has stopped taking medication from time to time and that she “has not been the best patient”. He said, however, that she “has not dropped out of treatment” and now knows that she requires medication. He opined that this awareness shows insight into her condition and indicates that she is likely to be a compliant medication taker in the future.
Generally, Dr J was of the view that the mother is “doing very well” and is no longer reluctant to consult with him. He recommended that she see him once per month.
In her report dated 13 December 2009 Dr Q summarised her assessment of the mother’s psychiatric state in these terms:
“The mother has a history of some paranoid ideation although there was none apparent at this assessment. There are no features of a schizophrenic illness or of a manic depressive or schizoaffective disorder. The impression is that when under stress [the mother] decompensates in a way that leads to some paranoid thought processes; thus it seems to be quite a reactive disorder. She has some capacity for insight into this and seems willing to accept ongoing treatment. Dr [J] confirms that the marital issues have played a major role in her presentation over time. Her father has had a very similar problem and he too has manifested paranoid thinking and, likewise, this seems to occur chiefly at times of very high stress and to be chiefly a reactive disorder…
In my view provided that she maintains her current medication and regular review by her psychiatrist [the mother] is likely to maintain her current level of very adequate function. Apart from the history of the father and his family, there is little to suggest that she is not able to provide well for the children. Dr [J] has treated her for many years and is of a similar view…”
In her second report dated 19 May 2010 Dr Q expressed some reservations about Dr J’s diagnosis of delusional disorder. She wrote:
“The mother appears to be providing well for the children and the psychological – psychiatric problems that she has had in the past seem to be well contained. She has excellent support from her family. Her treating psychiatrist, Dr [J], is satisfied with her progress and her current function and has been seeing her regularly, although in my view it would be prudent for her to have more frequent supportive psycho-therapy during this time and until there is a settled situation between her and [the father] with regard to the parenting arrangement.
Dr [J] has diagnosed a delusional disorder in [the mother] but there may be reason to question that diagnosis. Having read his file I see that she has had two, possibly three, very brief psychotic episodes, on each occasion resolving rapidly and in the context of ongoing marital stress. There have been long periods of time when she has not been seen and has functioned quite well. Since her first presentation in 1998 [the mother] has stated that the marital problems were the major issue for her. There are times when she has not been compliant with medication but this is perhaps understandable since she has often been very well and had no psychotic symptoms. She has also discontinued medication during pregnancy and that was perhaps appropriate.
The DSM criteria for delusional disorder emphasize “non bizarre” delusions, but on at least one occasion [the mother’s] delusional ideas were bizarre, regarding the devil. The diagnosis requires that delusions persist for at least a month yet on each occasion her disturbance has been perhaps transient, however the DSM description does allow for periods of full remission. Her psycho-social functioning has remained largely intact which is consistent with the diagnosis. In my experience delusional disorder is usually quite a chronic condition and generally resistant to treatment.
I agree with Dr [J] there is no evidence of any schizophrenic type disturbances. There was one episode which he describes as catatonic, a condition usually seen in the context of severe psychotic disturbance; again it was transient and it resolved completely. In my view this and perhaps the other episodes may reflect transient phenomena related to personality disturbance. In effect it is likely that her difficulties …relate to cluster B personality traits; in her case they would be more particularly of the histrionic sub-type.
Thus, it is my view that a differential diagnosis of brief reactive psychosis may also need to be considered. The practical implications are perhaps not major since Dr [J] and I certainly agree that [the mother] has most likely functioned well and has provided well for her children and that she is likely to remain in continuing follow-up for as long as required and is likely to comply with treatment requirements.”
Dr Q elaborated on her assessment of the mother’s psychiatric condition in her oral evidence. She said:
“I think Dr [J’s] diagnosis of delusional disorder is contentious, because she has reacted to circumstances and in between she has not shown psychotic phenomena.”
“I don’t think she fits the picture of classic delusional disorder – she reacts by decompensating.”
She added, however:
“I would not put huge resistance to the diagnosis.
But six psychiatrists would have six views.”
Dr Q said that she would be inclined to treat the mother with psychotherapy in addition to medication. She pointed out that she: “from day one presented to Dr [J] with concerns about the marital situation” and opined that “it would assist if her issues were addressed”.
In Dr Q’s view, the mother’s mental functioning since the separation is of clinical significance. She said: “It is quite an important observation that she has done well psychiatrically since the separation, despite the conflict”. Doctors J and Q agreed on the clinical significance of the mother’s stable psychiatric condition since the parties’ separation.
The mother described to Dr Q the difficulties which she claimed to have experienced while living with the father’s parents and generally in her relationship with him. She said that she was required to cook meals in a small outside kitchen because her mother-in-law considered that she failed to clean the inside facilities properly. She claimed that she was criticised for pursuing tertiary studies and prevented from spending the time which she wanted with her family. She said that the father became angry if other men spoke to her in social situations or if she looked sideways while they were driving. She maintained that he disapproved of her going to a gym with a female relative. These circumstances can only have proved very stressful to the mother, if her account is to be accepted.
The mother admitted to Dr Q that she lost self-control and resorted to screaming at people in the household. She attributed her conduct to the chronic stress of the situation. She pointed out that her parents-in-law lived only a few doors away after the family moved into their own accommodation.
The mother’s history and presenting complaint, when she first consulted Dr J in 1998, would tend to corroborate her account of these alleged difficulties. The opinions of Doctors Q and S that the father is “a control freak” would also tend to support the mother’s contention that he tried to undermine her autonomy.
It was suggested on behalf of the father that the mother conceded in cross-examination that she “did whatever she liked” during the marriage. She agreed that she “did whatever I wanted with the children”. She said it was correct that the father did not interfere with “how I managed the children, the household and my social life”. She pointed out that he was often absent from the home, pursuing his employment and activities with his friends. She maintained, however, that he was controlling “because we argued about things I wanted to do”. She agreed that she “went ahead and did it anyway”. It seems to me that attempts by the father to control the mother need not have been successful in order to cause her stress.
In cross-examination the mother explained that she was “more reactive” in the early stages of the marriage and conceded that she became angry and shouted. She admitted that she had “explosive moments” and agreed that she behaved largely as Dr M described in his affidavit. Dr M was the family’s general practitioner.
Dr M described a particular occasion when he attended the paternal grandparents’ home and saw the mother slamming doors, screaming and throwing things at the father and his parents. The mother described this incident as an occasion when she “was having a bit of a tantrum”. The evidence did not indicate when this incident took place.
The mother’s immediate workplace superior, Mr W, gave evidence in her case. She worked closely with him, as his personal assistant, for five years. He praised her as an employee and said nothing about any outbursts of temper or other concerning behaviour. Doctors J and Q attached significance to the fact that she has been able to maintain responsible employment for many years.
There was no expert evidence of any psychotic episode in the mother’s life since 2005. The only evidence that her behaviour was problematic around the time of the separation came from the father. His evidence sits uncomfortably with the records of the New South Wales Police Service and E Hospital. I refer below to the father’s evidence and these documents. His evidence also sits uncomfortably with Dr J’s account of his consultation with the mother on 8 May 2009, to which I have referred.
The single expert and the mother’s treating psychiatrist thus agreed that her condition is currently well-controlled and that she has functioned effectively since the separation, despite the conflict between the parties. Dr Q was inclined to the view that the mother’s mental illness is exacerbated by stress, in that she reacts by decompensation. Dr J opined that her psychotic episodes have been triggered by stress and non-compliance with medication.
It thus seems to me to be significant that the mother complained to Dr J of the stress which she experienced in the household of the paternal grandparents when she first consulted him in 1998. Over the years she continued to tell him of conflict with the father over financial matters. On any objective assessment, the picture which she painted to Dr Q and in her affidavit was of a difficult and stressful situation. I can only infer that evidence from the paternal grandparents would not have countered her allegations, as they were not called as witnesses in the father’s case.
The mother’s life situation is now vastly changed. My impression was that she has a happy, peaceful life in the home of her parents and is free to enjoy the company of her extended family and any activities which appeal to her.
I find that the mother suffers from a mental illness which is characterised by paranoia and brief, reactive psychotic episodes. I am satisfied that stress has exacerbated her condition. I find that her condition is currently well-controlled and that she is presently compliant with the medication regime prescribed by her psychiatrist, Dr J. I am satisfied that she is receptive to his advice and likely to continue to take prescribed medication regularly.
I am satisfied, and I find, that the mother’s psychiatric state has no adverse impact on her parenting of the children while she is in her current, well-controlled condition. I am persuaded that the stress of life with the father, particularly while cohabiting with his parents, exacerbated her condition. She is now freed from these sources of stress and has displayed no psychiatric symptoms since the separation.
Of course, I cannot say that the mother will suffer no future psychotic episodes. I can and do, however, weigh this risk against the other considerations which I am required to take into account in determining what orders are in the best interests of the children.
The Father’s Psychiatric State and Personality Traits
The father’s presentation to Dr Q on 4 November 2009 caused her concern that he may suffer from a mental illness. In her report dated 13 December 2009 she wrote:
“The father’s thought processes were markedly paranoid. At times he seemed delusional and at times there was evidence of thought disorder. These are features that suggest a mental illness. The focus of his ideas is the wife and her mental illness and aggression and he has made frequent contact with a variety of services to report this. Absent of mental illness, it was evident during this assessment that that [the father] is an extremely controlling and dominating character; this kind of personality profile is frequently observed in an abusive spouse.
While it is possible that there is some substance in his allegations about the mother most of what the father alleges was seen to be a product of paranoid thinking and/or of an attempt to impugn the mother’s adjustment. There does not seem to be much independent evidence of what he says about her. If his preoccupation with his wife’s mental illness is not well based in reality then it may a delusional idea or it may be a manifestation of his controlling personality style. His contact with various services seems designed to recruit others to his ideas – this may be a delusional phenomenon or it may be a further manifestation of his personality style.”
These opinions prompted the father to seek a report from Dr S, whose assessment was:
“From the history that I have obtained, documentation reviewed and my own clinical examination it is my opinion that [the father] does not demonstrate evidence of a formal psychiatric disorder as defined in the Diagnostic and Statistical Manual of Mental Disorders (fourth edition) of the American Psychiatric Association. In particular, I did not find clinical evidence to support a diagnosis of a schizophrenic disorder, schizoaffective disorder or delusional disorder. There was also no evidence to establish a mood disorder and in particular a major depressive episode or bipolar affective disorder. [The father] did not reveal evidence of an anxiety disorder or phobic disorder.
I found no evidence to support Dr [Q’s] suggestions that [the father] was thought disordered. He revealed no evidence of delusions or false beliefs based on incorrect inferences about external realities. He did not reveal bizarre or mood-incongruent thoughts. He did not reveal evidence of being controlled nor did he reveal delusions of reference, that is to say a belief that others in one’s immediate environment have a particular unusual significance. There was no evidence of persecutory delusions.
I did not find evidence to support a paranoid schizophrenic disorder nor a paranoid delusional disorder. [The father] was not guarded nor evasive nor has he been reclusive, sullen or hypersensitive. He expressed appropriate concern about his wife’s behaviour and in particular her mental illness. He was of the view that this was a substantial contributing factor to her altered behaviour and inappropriate commentary. He did not express resentment towards his wife. On the contrary he expressed disappointment that his marriage had failed.”
On 8 February 2010 Doctors Q and S conferred by telephone. Dr S agreed that the father is “controlling” and “probably a control freak” but disputed that he suffers from any psychosis. Dr Q agreed that the father does not have a mental illness such as schizophrenia but she was of the view that he presents features of Cluster B personality disturbance. She referred to “affect disregulation and transient paranoid phenomena when a person is under stress”. She noted that the father was very excited on the day of her assessment and at times his thought processes became fragmented. Dr S observed that the father appeared quite calm during his interview. They agreed that each parent is “providing quite well for the children”.
On 5 March 2010 Dr Q again interviewed the father and reported on 19 May 2010:
“When reassessed this year…there was no evidence of delusional or paranoid ideas or of thought disturbance. It is possible that at the time of the first assessment he was experiencing a brief reactive psychosis as a result of the considerable stress of the situation. This is a condition that can be triggered by stress and it resolves rapidly and completely. It is a condition similar to and perhaps identical with the transient psychotic phenomena that are also regularly observed in borderline personality disorder and in related disturbances of personality where there is difficulty with affect regulation.
Perhaps [the father] still believes what he said during the first interview but is more circumspect now about what he says, or perhaps he overstated the issues last year and has now reconsidered those statements. If the former, then there is reason for continuing concern about his mental processes; if the latter then this more likely suggests personality disturbance. It may be that both explanations apply since persons with Cluster B personality disturbance, especially of the borderline type, are prone to transient psychotic episodes under stress. In either case, there seems little doubt that characterologically [the father] is highly controlling and that this has characterised his relationship with the mother, which on her account, has been quite abusive. Dominance and control are characteristic of domestic violence relationships - more so than acute physical violence…. In my view it is this relationship dynamic that poses a threat to future arrangements for the family.”
On 23 April 2010 Doctors Q and S conferred again and continued to disagree as to the father’s psychiatric state. Dr S had by then seen the father on four or five more occasions. Dr Q reported on their conference as follows:
“Dr [S] said his view is not altered: he does not see any significant psychiatric impairment of the father and certainly nothing that would impact on his parenting capacity. He agrees that [the father] is a controlling person and that there will be continuing disputes between the parties but he believes the key issue is the ability to provide care for the children which he does not think is an issue for the father.
Dr [Q] remains of the view that the dynamics of power and control have characterised [the father’s] relationship with his former wife and while it may be difficult to make a diagnosis of clinical disorder of personality, he has prominent Cluster B traits which is in keeping with the profile of an abusive partner – commonly such individuals do not meet DSM criteria for a disorder. For this reason while Dr [Q] agrees that the father can provide adequately for the children in terms of meeting their physical and educational needs, nevertheless, emotionally and psychologically he is not well suited as a primary carer because of his controlling nature and also because he is unlikely to support the children’s relationship with the mother; he has been hostile towards and quite denigrating of her. Because of his controlling nature he is not well suited to a shared care arrangement as he would have great difficulty sustaining a co-operative relationship with the children’s mother.”
In her oral evidence Dr Q said:
“I have acknowledged that his first presentation may have been an isolated event, a brief reactive psychosis. He was quite different in the second interview” and
“I am not confident that Dr [S] is in a better position – he has only known him for a short time and he knew he was going to see Dr [S] to establish that he did not have a personality disorder” and
“I think I saw him at his worst and Dr [S] at his best”.
Dr Q referred to an incident on the father’s 40th birthday in February 2009. The mother had organised a surprise lunch on a cruise boat with both families. There was some delay in the arrival of the boat and the father became angry. When the mother then told him about the cruise, he immediately demanded of the child, C:
“Why didn’t you tell me? You’re supposed to tell me these things.”
The father conceded that C was upset by his behaviour.
Dr Q said of this incident: “This behaviour is in keeping with my profile of a very dominating person who can be psychologically abusive.” She said also that he is not a good role model for male children because “boys raised by abusive fathers tend to become abusive partners”.
Dr Q was also very concerned about the father’s wish to have the mother committed to a psychiatric institution. She said: “He is exploitative…this is an example of a very controlling personality”.
There is also strong reason for concern about the father’s attitude to the mother. As noted, his evidence of events during the separation period sits uncomfortably with the records of the New South Wales Police Service and St E Hospital, as well as the assessment of Dr J.
A COPS entry dated 2 May 2009 stated inter alia:
“INFT’s wife [the mother] suffers from schizophrenia and is having an episode and is trying – ass inft. INFT requires ambos and acute team.
PINOP stated that defendant suffers from schizophrenia. Nil symptoms apparent when police spoke to defendant and ambulance also assessed defendant but nothing apparent to them.
Fears held by police nil”.
The “INFT” could only be the father.
The records of E Hospital indicate that the father called the mental health triage team at 9.00am on 3 May 2009. The notes for that date stated, inter alia:
“Mental state impressions
Nil acute mental health issues.
Husband states [the mother] “not acute”, not suicidal/homicidal.
Summary
Caller not concerned about acute MH risks.
PC to client via mob 10.20 hour. [Mother] accepting of call. Sounded calm and coherent.”
With respect to Dr Q, I am not persuaded that the father suffers from a mental illness. I am inclined to the view that his presentation in the first interview coloured her perception of him, which is perhaps unsurprising.
There was no suggestion that Dr Q inaccurately reported what the father said to her or that he was quoted out of context. That being so, his statements cannot simply be disregarded. He made some remarks which are concerning as an indication of his attitude to the mother and the maternal family and in terms of their seemingly bizarre contents.
I will not repeat here all of the comments of this nature which the father made to Dr Q. It is sufficient to observe that he made some very peculiar statements and comments which were demeaning of the mother and her family. Dr Q reported on her first interview with the father:
“On the Labor Day weekend in ’07 [the child L] was watching a television show about families and he ‘got upset’ and then that week they went to Watson’s Bay again. [The father] thinks this is significant. That time apparently the grandparents took the children to Watson’s Bay and when [the mother] heard they had gone there, ‘she panicked’. The next day she took a day off work and went to lunch with her mother and the children. She never takes time off work. When he asked her where she had gone she said they had ‘devil’s chocolate pancakes’. (Again said with a knowing look; the impression was that this was a paranoid process.) then she was talking to [E] Hospital about devils ‘and a few weeks later we were back together’. They went to lunch at Watson’s Bay and [the mother] seemed ‘a bit edgy’. A few weeks later they were going out for a drive again and on their way there when [the mother’s] cousin called her on the mobile and he heard her say ‘Watson’s Bay’ and then suddenly [the mother] said: ‘Don’t go to Watson’s Bay’. They went to Bondi instead. ‘I think there’s something going on; I don’t know what. Everything matches up’. He worries a lot for the safety of the children. He has read about family murders; ‘It’s frightening – and she has flicked [C]’. (He was referring to her having made a flicking motion.)
[The father] referred again to the case of the woman who killed her son. He said: ‘[the mother] gets autistic’; he has researched this. (He demonstrated jerking movements).”
The mother’s simple and credible explanation for this supposed incident was that they had eaten “Devil’s Delight” chocolate pancakes during an outing. She annexed to her affidavit a copy of the restaurant menu, which included this item.
The father told Dr Q about an incident when he saw blood on L’s homework sheet. He informed Dr Q that he told his lawyer about this event, to which he seemed to attach considerable significance. Dr Q reported:
“There was another incident that concerns him: [the father] saw blood on the homework sheet. (He began to sob.) He was doing a homework assignment with [L] and saw blood on the sheet; [L] said that his (maternal) grandmother cut her finger in the kitchen. Asked how the blood got on his homework sheet, [C] said “she bandaged it in the bathroom”. [The father] told his lawyer about it. “It wasn’t like just a smudge; it was a big blotch of blood’. [L] said he is scared. Then two days ago [the father] couldn’t find the potato peeler and [L] immediately got upset and said ‘she could have got it’. He wonders if his children are ‘getting paranoid about their mother’. [L] follows his father around everywhere; he is scared: if he hears a door open, he says ‘maybe it’s her’.”
The mother’s simple and credible explanation was that the maternal grandmother cut her hand while peeling vegetables. At the time, she was helping L with his homework in the kitchen and some blood spilt onto his homework sheet.
The father made some strange criticisms of the mother’s family to Dr Q. She reported:
“[the father] continued that ‘the aunty’ who came to the house said: ‘ We have Dr [J] on our side and you have the acute care team’. She ([the mother]) ‘can manipulate this like a cult and her mother ([the maternal grandmother]) is like the ring leader. The holiday time he took them to the best resort and the mother rings and then [the aunt] is like in a trance. What are they doing to her? I asked did he mean there was some sort of mind control and [the father] answered ‘Possibly. Seduction. Her aunty ([Ms G]) takes her to gym three times a week; her mother speaks to her every day; she can’t break free.”
Dr Q reported further on her first interview with the father:
“[the father] returned to the story of the man who shot a 10 year old and a guy with a delusional disorder shot his wife. ‘I read about delusional disorder – and then there’s blood on the sheets. And Watson’s Bay. And these guys can be very evil and sinister. When I took the AVO out I said I have to be around the kids all the time, I see it in her eyes, she can go at any minute, she’s in total denial, yet she takes antipsychotics. Dr [X] talks about spitting tablets out and she did, I count the tablets every day. She takes her tablets at 9 p.m. but all the damage is done then. She refuses to do homework with the children and then I do – it’s denigration. [L] is afraid to speak to her; these are innocent children’. (There was an outpouring of information that was quite garbled at times and suggested thought disorder. I noted the secretive counting of [the mother’s] tablets.)
The father’s Minute made appropriate provision for the children to spend time with each parent on defined special occasions. I am inclined to add provision for two additional occasions per year with each parent, as suggested by the ICL, on condition of reasonable written notice. This flexibility would accommodate events such as a parent’s birthday or one-off, special family occasions.
These arrangements would, in my opinion, fall within the definition of “substantial and significant time”. Such periods of time with each parent would fall on weekdays, weekends and holidays. Both parents would be able to be involved in the children’s daily routine and participate in special events. I am satisfied that these arrangements would be in the children’s best interests.
I am also satisfied that these arrangements would be reasonably practicable. The children are fortunate that their parents’ homes are very close together. Both parents live in the same suburb and the boys’ school is nearby. There are no geographical impediments to these arrangements. There would be a lesser level of communication necessary than in the case of an equal time arrangement.
I am satisfied that the parents have the capacity to communicate sufficiently for the purposes of implementing these arrangements. It seems to me that a regime of this nature would not impact adversely on the children, as they would have a home base from which they could experience the best that both parents can offer. I am thus satisfied that it is in the best interests of the children, and reasonably practicable, for them to spend substantial and significant time with each parent.
Additional Orders Proposed by the Parents and the ICL
The ICL suggested an order which would give some definition to the concept of “equal shared parental responsibility”, to which both parties consented. It seems to me that this order may be of some assistance to them in carrying out their role as separated parents, although perhaps not strictly enforceable in its entirety. As consent was proffered, I will make an order in these terms.
The ICL also suggested an order to ensure that the parents do all things necessary to ensure that the children attend such counselling as may be recommended by Dr Q. As both parents offered consent, I will make this order.
The ICL sought orders that each of the parents attend upon a psychiatrist or, alternatively, a psychologist in the case of the father. I will not make these orders, which I regard as somewhat intrusive into the lives of responsible adults.
The ICL and the father sought orders to the effect that he be at liberty to take L to soccer training and matches while he is in the care of his mother. She opposed this order, on the basis of the disruption which be occasioned. I agree that the routine in her household would be disrupted by such an order. I also have concerns about the impact on C, whose condition of Osgood-Schlatters disease currently prevents him from playing soccer or any other contact sport. I will not make such an order.
I do not propose to make defined orders in relation to telephone communication. C is now 13 years old and I doubt that he would take kindly to being told by the court how often he may use his mobile telephone to ring one of his parents. Similarly, I doubt that he would tolerate limitations on his receipt of telephone calls from his absent parent for much longer into the future. The parents will simply have to learn to show respect for the smooth functioning of the other household by limiting their calls to a reasonable level.
The mother sought an order for each parent to spend time with the children on their birthdays. As I will adopt the ICL’s proposal for two additional “special” days per year on the nomination of each parent, I consider it necessary to make an order in relation to the children’s birthdays to prevent one parent monopolising these occasions.
To their credit, each of the parents consented to orders that they pay the outstanding fees of Dr Q and the costs of the ICL. I was not provided with an amount for the ICL’s costs, so this order will be in general terms.
I certify that the preceding one hundred and eighty nine (189) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 27 October 2010
Associate:
Date: 27 October 2010
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Jurisdiction
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Remedies
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Procedural Fairness
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