Bracken and Kinder
[2007] FamCA 1537
•23 November 2007
FAMILY COURT OF AUSTRALIA
| BRACKEN & KINDER | [2007] FamCA 1537 |
FAMILY LAW – CHILDREN—Best interests – Where both Mother and Father have psychological conditions – Where Mother presently diagnosed with bipolar disorder – Whether Father previously diagnosed as suicidal and an alcoholic – Where Mother disagrees with her diagnosis and refuses to take medication – Whether Child at risk if he lives with Mother – Where Father presently in good health and poses no risk – Child ordered to live with Father
| APPLICANT: | Ms Bracken |
| RESPONDENT: | Mr Kinder |
| FILE NUMBER: | BRF | 2139 | of | 2006 |
| DATE DELIVERED: | 23 November 2007 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Barry J |
| HEARING DATE: | 12 & 13 November 2007 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | The Applicant Mother appeared in person |
| COUNSEL FOR THE RESPONDENT: | Mr Leotta of Counsel appeared for the Respondent Father |
| SOLICITORS FOR THE RESPONDENT: | DA Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr George of Counsel appeared for the Independent Children’s Lawyer |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Jennifer Boulton, Solicitor |
Orders
(1)The child, D born … March 2005 live with the Father.
(2)The Father have sole parental responsibility for all long term decisions affecting the care, welfare and development of the child.
(3)The Father have sole parental responsibility for the day to day care, welfare and development of the child.
(4)The Mother spend time with the child at all such times and places as the parties may mutually agree and upon such terms as they may mutually agree but in the event they are unable to agree then as follows:
a.from 4.00 pm Friday until 4.00 pm Sunday any weekend the Mother is in Brisbane provided that:
i.she has given the Father ten (10) days written notice of her intention to spend time with the child;
ii.she agrees that such time shall be supervised by a person approved by the Father;
iii.in the event the Father unreasonably refuses to approve a person nominated by the Mother as a supervisor then supervision shall be by a person as approved by a Judge of this Court;
b.for half school holidays provided such time is supervised in terms similar to those provided in paragraph a above;
c.by telephone every Monday and Wednesday between 5.30 pm and 6.30 pm with the Mother to facilitate the calls.
(5)The Father is to supply the Mother in writing with any details concerning the child’s medical treatment from time to time including the name and address of any treating medical practitioner.
(6)The Independent Children’s Lawyer is discharged.
(7)Liberty to apply on fourteen (14) days notice.
(8)Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these orders.
IT IS NOTED that publication of this judgment under the pseudonym Bracken & Kinder is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRF2139/2006
| MS BRACKEN |
Applicant
And
| MR KINDER |
Respondent
REASONS FOR JUDGMENT
The parties to this litigation are the natural parents of a two year old boy, D born in March 2005. I am asked to make orders in relation to the future care of this child.
Orders Sought by Applicant Mother
By an amended application for final orders filed 31 October 2007 the Mother seeks orders in the following terms:
(1)“The child [D] born […] March 2005 be known from this day forth as [D].
(2)The child [D]born […] March 2005 reside with the Mother and she be responsible for his day to day care, welfare and development.
(3)That the child’s Conception, Birth, and first two years of life be and remain private and sealed by the Court.
(4)The Mother and child [D] to live in [North Queensland].
(5)The Father to live in Brisbane.
(6)Christmas commencing 2007 to be with the Mother in [North Queensland] for the first two years then to be with the Father in Brisbane supervised by Carer biannually starting 2009. (The Father has proven he is incapable of raising a child on his own and certain relations are unacceptable in their behaviour towards the child). (The Mother’s children she sees at present 2008 Christmas biannually in [North Queensland]) (sic).
(7)The Child only to be visiting the Father in Brisbane if appointed Carer for Father is present and available to live with Father and Son for arranged time of visit. After commencement of school, only school holidays are acceptable. Christmas holidays different arrangement as point 6.
(8)All medical, schooling, counselling arranged by Mother and advised to Father if requested.
(9)Father to pay no Child Support, but to be covering all costs to see Child during visits.
(10)Mother’s address and phone number available at all times to known family of [D] with the condition no harassment and/or violence is directed at Mother and Child.”
Orders Sought by Respondent Father
By an amended response to an application for final orders filed 30 October 2007 the Father sought orders in the following terms:
“(1) That the child, [D] born […]March 2005, live with the Father.
(2) That the Father have sole parental responsibility for all long term decisions affecting the care, welfare and development of the child.
(3)That the Father have sole parental responsibility for the day to day care, welfare and development of the child.
(4)Upon the Father receiving a favourable report from the Mother’s treating psychiatrist indicating that the Mother is functioning well, the Mother spend time with the child as agreed between the parties but failing agreement as follows:
4.1 For a period of two days, for a period of two hours on each day, on three occasions, thereafter:
4.2 From 5.00 pm Friday until 5.00 pm Sunday on three occasions, thereafter:
4.3 For the first half of the Easter, June/July and September Queensland Gazetted School Holidays in every odd numbered year and the second half of the Easter, June/July and September Queensland Gazetted School Holidays, in every even numbered year;
a. that the child spend two weeks alternating with the Mother during the Christmas School Holiday Period, with the Mother to spend the first two week period with the child in every odd numbered year and each alternate fortnight thereafter and the second two week period in every even numbered year and each alternate fortnight thereafter;
b. that the child shall be in the care of the Father from 5.00 pm Christmas Eve until 5.00 pm Christmas day in every odd numbered year and 5.00 pm Christmas Day until 5.00 pm Boxing Day in every even numbered year;
c. that the child shall be in the care of the Mother from 5.00 pm Christmas Day until 5.00 pm Boxing Day in every odd numbered year and from 5.00 pm Christmas Eve until 5.00 pm Christmas Day in every even numbered year.
(5) That the Mother have telephone communication with the child every Monday and Wednesday between 5.30 pm and 6.30 pm, with the Mother to facilitate such calls.
(6) That all time spent between the Mother and the child is to be supervised by the Maternal Grandparents, until such time that the Father considers that supervision is not necessary.
(7) That changeover is to occur at a midway point between the Father’s residence and the Maternal Grandparents’ residence.
(8)That this order is to act as authority for the Father to liaise with the Mother’s treating psychiatrist.”
At the commencement of the hearing Counsel for the Father informed me that paragraph 6 was to be amended by deleting the words, “until such time that the Father considers supervision is not necessary.”
The Court was assisted by the appointment of an Independent Children’s Lawyer.
The Mother was not legally represented in the proceedings before me. The Father and the Independent Children’s Lawyer were each represented by Counsel.
Witnesses in Mother’s Case
In the Mother’s case she gave evidence on her own behalf and relied on her affidavits which had been filed. Although she had filed no affidavit from the school principal at the school where she is employed she sought leave to call him by telephone. This permission was granted. The Mother also indicated she wanted to call the Father’s brother but had made no arrangements to do so. She did not press for this aspect to be taken further.
Witnesses in Father’s Case
The Father gave evidence on his own behalf and adduced evidence from his general practitioner, Dr F. Dr F gave evidence by way of telephone link up.
Witnesses in Independent Children’s Lawyer’s Case
Dr M, psychiatrist, had prepared two reports dated 29 May 2006 and 12 March 2007. In addition she saw the Mother for a further assessment at 3.30 pm on the first day of the hearing. She gave evidence concerning her reports and observations and was cross examined in relation to her observations made at the recent interview. The Independent Children’s Lawyer also called evidence from Ms K a group leader at the child care centre the child attends.
Background Facts
The Father was born in 1960 and the Mother in 1968.
The Mother has three children, R born in 1993, N born in 1995 and D born in 1998. They reside with their father in Brisbane. They visit the Mother in North Queensland for a limited number of holiday periods.
The Father has three daughters, all of adult status. The Father maintains contact with them.
The parties met in December 2001 whilst both were receiving treatment as inpatients at the Mental Health Unit of a Brisbane based Hospital.
Cohabitation commenced in January 2002. The parties separated on 18 November 2005, although there had been an earlier period of separation of four months from June until October 2005 (refer Father’s affidavit filed 13 February 2007 – paragraph 7).
In December 2004 the parties moved to North Queensland. The Mother has resided there since that time. She has bought her own home in an outer suburb. She is currently employed in two positions, at primary school and also as an after school carer at a local Youth Club. After separation the Father relocated to Brisbane with the child and remains residing here with his son. He is not working and is available to look after the child on a full time basis.
The Mother’s parents reside in Brisbane. They attended at Court having been subpoenaed by the Independent Children’s Lawyer but when informed they would not be required as witnesses they remained with their daughter at Court to offer moral support. It would appear from statements made by the Mother in the course of her evidence that the relationship with her parents is at times problematical.
The Mother has been diagnosed as Bi-Polar. Much of the evidence in the case revolves around this diagnosis and the Mother’s ability to cope with same, particularly as it impacts on her capacity to parent her son, D.
No family report had been ordered or prepared in this matter.
The most objective evidence before the Court is to my mind contained in the assessment by Dr M. I turn to consider her reports and her evidence.
Evidence of Dr M
Dr M has been practising as a psychiatrist since 1972. In the course of her professional career she has held the following positions:
·Consultant psychiatrist - … Hospital
·Consultant psychiatrist - … Rehabilitation Centre
·Consultant psychiatrist – … Organisation
·Consultant psychiatrist – … Detention Centre.
Since March 2005 Dr M has been a member of a Mental Health Review Board.
Dr M’s First Report
In her first report on page 5 Dr M made the following observation of the child with his parents:
“The child was relaxed and comfortable with his father. His developmental milestones appear to be appropriate although the walking was somewhat delayed. He was well dressed and looked adequately nourished. When the time came for the father to leave and the mother came in the child cried and was distressed.”
“The child was seen with the Mother. He never appeared as comfortable with the mother although she was appropriate in her dealings with him. At this stage his major attachment appears to be to the father.”
At page 8 of the report Dr M records her observations of the parties in the following terms:
“At interview the father displayed normal mood and appeared to be of above average intelligence. He was warm and co-operative. His comments about the child and his interaction with the child indicated a good understanding of the child’s developmental needs and appropriate parenting. However he has a history of a dysfunctional childhood which may be of significance for his parenting.
The mother was discursive in her history. Her mood at the time of assessment was normal. She appeared to be of above average intelligence. She had a tendency to rationalise her illness despite her acceptance of the diagnosis. Her past history and partial acceptance may indicate that she would have difficulty being compliant with medication. She attributes her illness to external factors. She also was appropriate in her care of the child but his primary bond appeared to be with his father.”
Dr M’s Second Report Dated 12 March 2007
At page 7 of this report Dr M notes:
“[D] in his father’s company was relaxed, comfortable and affectionate. The father is intellectually stimulating. The child looked well nourished and well presented and there was no behavioural abnormality. I certainly did not get the impression when the mother was changing the child’s nappy in my room that the child has displayed any particular apprehension.
Opinion
At the time of my assessment [the mother] was exhibiting behaviour consistent with the diagnosis of Bi-Polar Affective Disorder notably suspicion, irritability, pressure of speech and some paranoid ideation. I note a well documented history of Bi-Polar Affective Disorder and that consistently she has demonstrated impaired insight into her condition. The father appears appropriate in his dealings with the child and it is my impression that he is the child’s primary attachment figure.
I feel that the child experiences a stable environment whilst he is in the care of the father and at times of the mother’s illness her impaired judgment is such that the father represents the more appropriate parent. It appears that the mother does respond to medication and that the obvious recurrence of her disorder at the time of my assessment may have been the result of her ceasing her medication.”
In the course of her oral evidence Dr M reported on her opinion and observations arising from the interview with the Mother on the previous afternoon. She recorded that the Mother told her that she was not getting on with her parents and that she did not trust anybody. Dr M observed derailment of thought or thought disorder on the part of the Mother. She recorded that the Mother strongly disagreed with the diagnosis of Bi-Polar Affective Disorder. Dr M expressed the view that it was highly improbable the Mother would take any medication prescribed for a Bi-Polar condition. In relation to her prognosis she was of the view that there was a likelihood the Mother would have a recurrence of her condition and in the absence of any medication, in the future there was a likelihood that such recurrences would be more frequent.
I accept Dr M’s evidence as set out in her two reports and in her oral evidence. Her evidence is corroborated by various exhibits which were tendered into evidence.
Exhibits
Dr H is a psychiatrist in Brisbane the Mother spoke highly of as someone in whom she had trust. Dr H wrote to Dr Y on 18 March 2005 shortly after the Mother had relocated to North Queensland. In that letter she noted (exhibit 1):
“I have been seeing [the mother] since August 2002. She has required hospitalisation on three occasions for manic episodes, the first being in 1999. She has also had prolonged periods of depression. The pattern of [the mother]’s admissions has been that she initially becomes depressed, usually in relation to an environmental stressor. She then becomes increasing (sic) agitated with a rapid escalation and mood. When manic she becomes disinhibited with behaviours including impulsive spending, shaving her head and travelling around the country. She also develops persecutory delusions. [The mother]s last two relapse (September 2003, May 2004) have been able to be controlled without hospitalisation through monitoring of early warning signs, particularly decreased sleep and increased texting/emailing.”
Dr Y is a consultant psychiatrist in North Queensland whom the Mother has consulted from time to time. In a letter from Dr Y to the Mother (exhibit 3) dated 17 November 2006 he notes:
“As we discussed today I understand that you do not accept that you have
Bi-Polar Mood Disorder or any form of psychotic disorder but that you had a “post natal depression” - -In my view you do suffer from mood and psychotic symptoms which develop when you are particularly under stress. As we have discussed I believe that medications would help to minimise these symptoms and may even prevent them all together. Therefore I believe that you would benefit from being willing to trial treatments however since you believe that you do not have any kind of illness we have had difficulty in developing a shared understanding.
In my opinion management should involve both medication and psychosocial intervention, including monitoring of triggers and early warning signs of relapse and minimising and managing stresses with support. I understand that you are doing your best to minimise these stressors and believe that by doing so you will remain well but I am concerned that you could again relapse and need further treatment. I would like to continue seeing you regularly to see if we can agree on further treatment goals.”
The Mother produced a report from Dr S a psychologist in North Queensland dated 22 October 2007.
She reports that she has seen the Mother on two occasions over the “last month”. The report is of little assistance – it is simply a recitation of what the Mother has told the psychologist. I place very little weight indeed on this report.
Observations and Comments in Relation to Mother’s Evidence
Portions of the Mother’s evidence could only be described as bizarre.
I note but a few examples:
· The Mother expressed the view that she could have HIV of the mind. She says she was tested as to whether she was HIV positive and the test result indicated this was not the case. Apparently her former husband (not the Respondent Father) was unfaithful during the period of the relationship. She is of the view that this has caused some form of HIV of the mind.
· The Mother failed to attend at the hearing when this matter was set down for trial in April this year. The reason she now gives for failure to attend was that she did not have a partner at the time and she thought that she would be judged harshly for being a single mother. Her conduct on that occasion does not appear to be consistent with her attitude during the course of the current hearing when she was able to attend for trial even though she had not re-partnered. For his part the Father is of the view the reason she did not attend on the earlier occasion was because she was having a manic episode at the time. I have to record that the Mother’s explanation for failing to attend in April is less than convincing.
· The Mother’s mother had sustained an electric shock whilst pregnant with the Mother’s older brother. Whether it was an electric shock or electric shock treatment was not particularly made clear although the Mother corrected the position to be that it was an electric shock. The Mother was of the view that because she was an egg in her mother’s womb at that time she was affected. The impact on her in her own description was, “my brain short circuits”.
· The Mother in her evidence gave a detailed description how every word has five meanings. She obviously suffers confused thinking particularly with long or complex sentences.
· The Mother was adamant that the Father had had a heart attack although there was no evidence to corroborate this.
Mother’s Affidavit Evidence
In her affidavit filed 7 February 2006 (paragraph 11) the Mother says she was appointed as the Father’s carer from January 2002 until early 2005. During this period she says she received a carer’s pension. The Father’s version of this is set out in his affidavit of 13 December 2005 at paragraph 145 where he states that the Mother elected herself as his Centrelink carer in order to obtain higher benefits.
There is a consistent pattern throughout the Mother’s affidavit evidence and oral evidence which would indicate she has a tendency to blame others for any difficulties she encounters in life. In addition, because of her persecutory beliefs she does not come across as a reliable historian.
The Mother in her evidence makes a series of allegations against the Father including allegations of domestic violence and being a regular consumer of cannabis. There is no corroboration of this evidence other than the fact that the Mother did obtain a protection order which the Father did not contest. For his part the Father denies the allegations made against him. Because of my concerns about the Mother’s veracity in general I am unable to make positive findings in relation to the allegations she makes.
At paragraph 66 of her first affidavit the Mother states:
“66.[The father] and I both suffer from mental health issues. I, however, have heeded medical advice and my condition does not affect me on a day to day basis. I am fully aware that I need to take the medication even when I am feeling well.”
If that was the Mother’s view in early 2006 it is certainly not her view now. I note the opinion of Dr M in this regard. I note that the earlier affidavit was prepared by a solicitor as was the subsequent affidavit. At paragraph 93 of the following affidavit the Mother states:
“93.I am fully aware of my medication and treatment even when I am feeling well.”
The change in the text is slight but significant.
In her affidavit filed 23 February 2007 at paragraph 98 the Mother says:
“98.I wish to have [D]’s surname as [Bracken]-[Kinder] to illustrate a connection between myself and [D] and a connection between [the father] and [D]. If [D]’s surname remains [Bracken] [Kinder] it lessens the connection between [D] and myself and possibly be dropped.”
There was no further evidence on this aspect of any description nor were any submissions made. I am not minded to alter the child’s name by the addition of a hyphen as suggested by the Mother.
The final affidavit of the Mother had been prepared by herself. She simply confirms the contents of her two previous affidavits.
In the course of her evidence the Mother was insistent that regardless of the outcome of this litigation she would not relocate from North Queensland to Brisbane. If the Court offered the Mother the opportunity to spend time with her son in Brisbane she was adamant she would not avail herself of that choice.
The operative order would appear to be the order of Federal Magistrate Slack of 7 July 2006 that the Mother is to spend supervised time with the child, supervised by her parents. This has not happened for some time.
Evidence of Mr B
Mr B is the principal of the school at which the Mother is employed. She works there for 25 hours per week. Mr B confirmed her employment and was of the view that she did her work capably. I do not find Mr B’s evidence to be of any great assistance in determining this matter.
Father’s Evidence
The Father relied on four affidavits filed 13 December 2005, 30 January 2006, 13 February 2007 and 5 October 2007.
In relation to the first affidavit he sets out in some detail behaviour he has observed of the Mother at various times when she has experienced manic episodes during the course of their relationship. The incidents in September 2002 at … when she had the children of her first marriage in her care are particularly concerning including shaving her head and engaging in other conduct as described in paragraph 41 of that affidavit. It must be disconcerting for children of any age to find that their Mother has shaved her head, absent any rational explanation for doing so.
I have no reason to doubt the evidence of the Father as set out both in affidavit form and his oral evidence to the Court. He impressed me as a particularly sincere person without guile.
The Father denied that he had been admitted to hospital after suffering a heart attack. The report from Dr F annexed to her affidavit filed 30 October 2007 for the entry of 21 September 2007 notes:
“On this occasion [the father] presented complaining of a lot of chest pain over the last 18 months and had chest pain at the time of his consultation. He had slight chest wall tenderness and there were no suspicious changes on his ECG but he was referred to [a Brisbane based Hospital] to exclude a cardiac cause and I sent him in by ambulance as he had persisting pain. He had elevated blood pressure on this occasion.”
Entry 27 September 2007:
“[The father] presented for review. He informed me that [the hospital’s] Emergency Department had determined the pain previously mentioned was not cardiac in origin and that he had had a stress test which showed no ischaemic changes. His blood pressure had settled significantly and was near normal on this visit - -.”
In the penultimate paragraph of her report Dr F notes:
“My opinion on [the father]’s current state of health is that he does suffer from a number of serious medical conditions including diabetes, depression and hypertension and that control of these has gradually improved over the last few months but that further improvement would be desirable. He seems to be a
co-operative patient and compliant with his medication and treatment.”As noted Dr F gave evidence by telephone link up. There was no aspect of her evidence which would lead me to doubt the validity of the opinions she has expressed in her report.
Section 60CC Factors
Primary Considerations
Section 60CC(2)(a) is in the following terms:
“The primary considerations are:
a.the benefit to the child of having a meaningful relationship with both of the child’s parents.”
The Mother says she wishes to continue to reside in North Queensland. She has bought her own home there. She has employment there. She grew up there and says she has a circle of friends as part of a support network.
Balanced against this:
· the Mother’s three older children reside in Brisbane;
· the Mother’s parents reside in Brisbane;
· the subject child resides in Brisbane;
· the mother has siblings in Brisbane.
The Father’s evidence in his affidavit of February 2007 paragraph 31 is to the effect that he took D to North Queensland on the following occasions:
· twelve days in April/May 2006;
· three weeks in June/July 2006;
· five weeks in August/October 2006.
In addition the Mother spent time with the child in Brisbane for a period of four days in December 2006 with the intention that the time spent be supervised by her parents. There is a suggestion by the Father that the parents did not supervise this contact at all times.
On the Father’s evidence the Mother is free to speak to her son by phone whenever she wishes whilst on other occasions the Father initiates the phone calls.
I accept this evidence by the Father that he has encouraged a relationship between the child and his Mother. The Father’s evidence that he and the Mother have frequently attempted reconciliation appears both honest and sincere.
I have no doubt whatsoever that if the child is placed in the Father’s care the Father will do all in his power to facilitate an ongoing relationship between D and his Mother.
In the event the child was placed in his Mother’s care in North Queensland I would have serious reservations as to the extent the Mother would seek to foster a relationship between D and his Father. But one example of this is to be found in the restrictive form of orders the Mother seeks.
Whilst each party seeks that the time the other spends with the child be supervised, in the Mother’s case this is in accordance with recommendations in Dr M’s second report (refer final paragraph), as previously quoted. This is also in accordance with the existing orders made by Federal Magistrate Slack on 7 July 2006.
No one, other than the Mother, is suggesting the time the Father spends with his son needs to be supervised, particularly where he has had the child in his care for significant periods of time since the separation.
In summary if the child is placed in the Father’s care there are reasonable prospects of the child having a meaningful relationship with both parents. If the child is to be placed in his Mother’s care such a prospect is less likely.
Section 66C(2)(b) – THE NEED TO PROTECT THE CHILD FROM PHYSICAL OR PSYCHOLOGICAL HARM - -
The medical evidence would suggest the child is at risk of harm and/or neglect if he was in the care of the Mother during a manic episode. Her behaviour at such times cannot be relied on to be rational. The likelihood of a manic episode is increased by the fact she does not take medication and does not respond to signals which precede an episode.
Whilst the Father has his own health problems as set out in the evidence of
Dr F, his condition has improved over a period of time. He does not present in any way as engaging in any conduct which would be considered harmful to the child.
Additional Considerations
3(a) – ANY VIEWS EXPRESSED BY THE CHILD - -
A child of two and a half years of age is too young to express any meaningful views but the report of Dr M would indicate D is more closely bonded to his Father. This is understandable as the Father has been the primary carer for the child since shortly after the child’s birth. Unfortunately, the Mother has not availed herself of additional time she could spend with her son, in part because of her reluctance to attend in Brisbane but also because of her resentment at what she perceives to be the unnecessarily restrictive terms such as supervision placed on her contact.
3(b) – THE NATURE OF THE RELATIONSHIP WITH THE CHILD WITH EACH OF THE CHILD’S PARENTS AND OTHER PERSONS - -
The Mother perceives herself to have been bullied by her own parents and appears resentful towards them because of this. She sees her escape to North Queensland as a means of insulating herself from being controlled by the Father, her parents or any person in authority. She now refuses to be placed in a situation where she perceives she would be vulnerable. The consequence of this from her point of view is this Court has to either grant her the care of the child in North Queensland or she will not see him particularly if such time spent with the child is to be supervised by her parents.
The Mother does not put forward any other person appropriate to be a supervisor.
I am satisfied on the evidence the Father has a close relationship with D.
The maternal grandparents obviously have a relationship with D but were not observed by Dr M spending time with him. They have not sought orders in their own right.
In the Father’s affidavit filed 5 October 2007, paragraphs 18, 20 and 21 he deposes:
“18.Throughout the course of these proceedings, I have contacted the Mother’s parents, if her phone has been disconnected or when she has seemed unwell, in an effort to gain insight from her parents about her wellbeing. I have met with some adversity from the Mother’s parents at times when they have seemed disinterested in communicating with me or not willing to provide me with information about the Mother.
20.On 29 May 2007 I attempted to telephone the Mother’s parents but they were unavailable. I left a message on their answering machine asking whether they wished to spend time with [D] that coming weekend. I did not receive a response.
21.The Mother’s parents rarely telephoned to speak with [D].”
If the maternal grandparents sought greater interaction with D I would not anticipate the Father being opposed to this. Indeed, he may be grateful for some respite from the ongoing responsibilities of full time sole parenting.
However, this is not an issue before the Court at the present time as no orders are sought in this regard.
I conclude by observing that to the extent the Mother’s relationship with D is compromised it is largely as a result of decisions she has made.
3(c) – THE WILLINGNESS AND ABILITY OF EACH OF THE CHILD’S PARENTS TO FACILIATE AND ENCOURAGE A CLOSE AND CONTINUING RELATIONSHIP BETWEEN THE CHILD AND THE OTHER PARENT - -
I have previously made observations on this aspect when considering the primary consideration in 2(a) above.
3(d) – THE LIKELY EFFECT OF ANY CHANGES IN THE CHILD’S CIRCUMSTANCES
If the child is placed in the Mother’s care it is predicted he would greatly miss the relationship with his Father as his primary care giver. The parties have limited finances and the considerable distance between North Queensland and Brisbane would further limit the opportunities the Father has to maintain a relationship with his son. I am of the view it would be particularly unsettling to move D on a permanent basis from the environment with his Father in Brisbane to the North Queensland environment with the Mother.
3(e) - THE PRACTICAL DIFFICULTY AND EXPENSE OF A CHILD SPENDING TIME WITH AND COMMUNICATING WITH A PARENT - -
The cost of travel between North Queensland and Brisbane is significant but not insurmountable. The Mother has not put forward anyone in North Queensland as a suitable supervisor for her time with the child. She relies on the fact her other children attend in North Queensland without supervision. The reality is the Mother’s other children are aged 14, 12 and 9. There is a considerable difference in having unsupervised time with children of that age as against a child of only two.
3(f) – THE CAPACITY OF EACH OF THE CHILD’S PARENTS TO PROVIDE FOR THE NEEDS OF THE CHILD INCLUDING EMOTIONAL AND INTELLECTUAL NEEDS
The Father’s capacity to provide for the child’s emotional and intellectual needs is affected to some degree by his less than optimal health. However two medical practitioners, namely Dr F as a GP and Dr M as an independent consultant psychiatrist both appear to indicate there is nothing in the Father’s physical health which would preclude him from performing satisfactorily his parental duties.
Dr M has ventured the view (second report page 7) (previously quoted) that:
“The child experiences a stable environment whilst he is in the care of the Father and at the time of the Mother’s illness her impaired judgment is such that the Father represents the more appropriate parent.”
This opinion was not challenged in any way.
The Mother’s illness is likely to impact on her capacity to parent the child. If she was accepting of her diagnosis and agreeable to taking her medication the position might well be significantly different. The Court has no control over whether the Mother elects to take her medication or not. I would have some concerns as to the suitability of the Mother as a role model to the child. Her refusal to take medication prescribed for her leads to ongoing thought disorder and is not limited to periods when she is having a manic episode.
In oral evidence Dr M observed the Mother was more in control and calmer than when seen in March 2007 but was still of the view that she was mentally ill.
3(g) – THE MATURITY, SEX, LIFESTYLE - - OF THE CHILD
The child is two and half years of age. He appears to be developing normally for his age.
3(h) – IF THE CHILD IS AN ABORIGINAL CHILD - -
Not relevant.
3(i) – THE ATTITUDE TO THE CHILD AND TO THE RESPONSIBILTIES OF PARENTHOOD DEMONSTRATED BY EACH OF THE CHILD’S PARENTS
It is regrettable that the Mother has taken the stance she has in:
· refusing to consistently fully recognise her condition;
· refusing to accept sound medical advice that her condition could be improved through medication;
· her refusal to contemplate a move to Brisbane or its environs.
So long as the Mother adopts this attitude little can be done to foster her relationship with her son.
This view is expressed whether the Mother was to have the child on a full time basis in North Queensland, whether provision was made for the Mother to spend time with the child in North Queensland or whether the Mother had the opportunity to spend time with the child in Brisbane.
The Father’s attitude has at all times been appropriate.
3(j) – ANY FAMILY VIOLENCE INVOLVING THE CHILD OR A MEMBER OF THE CHILD’S FAMILY - -
The Mother has made allegations that the Father attempted to strangle her in 2004 and thereafter also was violent on occasions including an incident where he threw a cup of coffee at her.
In the course of cross examining the Father the Mother was quite assertive. She engaged in ongoing eye contact with him; her voice was firm and occasionally it was raised. She did not give any indication of being intimidated by the witness.
I have refrained from making any positive finding in relation to the Mother’s allegations of violence towards her. There is no suggestion of violence by either parent towards the child.
If violence ever was a factor in the relationship of the parents it is unlikely to be relevant in the future.
3(k) – ANY FAMILY VIOLENCE ORDER THAT APPLIES TO THE
CHILD - -
The Mother has appended the domestic violence application and the protection order to her affidavit filed on 9 February 2006. I have familiarised myself with these documents and they do not in any way alter the views that I have expressed in these reasons.
Conclusion
Counsel for the Independent Children’s Lawyer supported the orders as sought by the Father. He accurately summarised the position when he observed this was a tragic case in that an intelligent and caring mother is misguided about the nature of her illness.
I have considered the Father’s past abuse of alcohol and his history of attempted suicide. Based on the medical evidence I am satisfied he does not currently pose any risk to his son.
I accept the force of the submission on behalf of the Independent Children’s Lawyer that in the particular circumstances of this case where the Mother refuses to accept her need for treatment the presumption of shared parenting is rebutted.
The parties do not communicate well. They have been unable to co-operate to any satisfactory level in the recent past.
I accept the opinion that at present any time spent by the Mother with her son should be supervised as recommended by Dr M.
In the event the Mother elects to change her stance about visiting her son in the South East Queensland region I will introduce a note of flexibility in the orders to allow for ongoing time to be spent with her son.
For the reasons given I propose to put in place Orders in the following terms:
(1)The child, D born … March 2005 live with the Father.
(2)The Father have sole parental responsibility for all long term decisions affecting the care, welfare and development of the child.
(3)The Father have sole parental responsibility for the day to day care, welfare and development of the child.
(4)The Mother spend time with the child at all such times and places as the parties may mutually agree and upon such terms as they may mutually agree but in the event they are unable to agree then as follows:
a.from 4.00 pm Friday until 4.00 pm Sunday any weekend the Mother is in Brisbane provided that:
i.she has given the Father ten (10) days written notice of her intention to spend time with the child;
ii.she agrees that such time shall be supervised by a person approved by the Father;
iii.in the event the Father unreasonably refuses to approve a person nominated by the Mother as a supervisor then supervision shall be by a person as approved by a Judge of this Court;
b.for half school holidays provided such time is supervised in terms similar to those provided in paragraph a above;
c.by telephone every Monday and Wednesday between 5.30 pm and 6.30 pm with the Mother to facilitate the calls.
(5)The Father is to supply the Mother in writing with any details concerning the child’s medical treatment from time to time including the name and address of any treating medical practitioner.
(6)The Independent Children’s Lawyer is discharged.
(7)Liberty to apply on fourteen (14) days notice.
(8)Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these orders.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.
Associate
Date: 23 November 1997
Key Legal Topics
Areas of Law
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Family Law
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