Buckingham and Simm

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUCKINGHAM & SIMM

[2017] FCCA 1077

Catchwords:
FAMILY LAW – Parenting – relocation – impact of mother’s mental health on the children – whether the children should live on a week about basis with each parent – which parent should have parental responsibility for the children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Child Support (Assessment) Act 1989, s.117

Cases cited:
Collu & Rinaldo [2010] FamCAFC 53
AMS v AIF [1999] HCA 26
U v U [2002] HCA 36
Cowley and Mendoza [2010] FamCA 597
Lennon & Lennon [2011]FamCA 571
Taylor & Barker [2007] FamCA 1246
Heath & Hemming (No.2) [2011] FamCA 749

Applicant:

MS BUCKINGHAM

Respondent:

MR SIMM

File Number:

MLC 2678 of 2014

Judgment of:

Judge Williams

Hearing dates:

28 February 2017 – 3 March 2017

Date of Last Submission:

14 March 2017

Delivered at:

Melbourne

Delivered on:

24 May 2017

REPRESENTATION

Counsel for the Applicant:

Mr Hutchings

Solicitors for the Applicant:

Armstrong Legal

Counsel for the Respondent:

Ms Smallwood

Solicitors for the Respondent:

Palmer, Stevens & Rennick

ORDERS

All previous parenting orders for the children X (“X.”) born (omitted) 2004 and Y (“Y”) born (omitted) 2008 (“the children”) be discharged.
The parents have equal shared parental responsibility for the children.
The children live with each parent:

During school term:

a)on a week about basis from the conclusion of school each alternate Monday until the commencement of school the following Monday commencing the first Monday of Term 3 2017

During school term holidays:

b)the one half of the school term holidays at times agreed between the parties, and in default of agreement first half being from the conclusion of school Friday until 5 PM on the middle Saturday

During the Christmas school holidays: (subject to Christmas Day arrangements)

c)In 2017/2018 and each alternate year thereafter, with the mother from the conclusion of school for a period of two weeks and with the father for the following two weeks
d)In 2018/2019 and each alternate year thereafter, with the father from the conclusion of school for a period of two weeks and with the mother for the following two weeks
e)with each parent, for one half of the balance of the Christmas holidays as follows :
(i)for the first half with the mother in 2017/2018 and each alternate year there after
(ii)for the first half, with the father in 2018/2019 and each alternate year thereafter

Christmas day arrangements:
f)with the father from 3 PM Christmas Eve to 5 PM on Christmas Day in 2018 and each alternate year thereafter, and from 5 PM Christmas Day to 5 PM on 26 December 2017 and each alternate year thereafter
g)with the mother from 5 PM on Christmas Day to 5 PM 26 December in 2017 and in each alternate year thereafter, and from 3 PM Christmas Eve to 5 PM Christmas Day 2017 and each alternate year thereafter

Father’s Day and Mother’s day

h)with the father, from 5 PM on the Saturday preceding Father’s Day until the commencement of school Monday
i)with the mother, from 5 PM on the Saturday preceding Mother’s Day until the commencement of school Monday

Children’s and parent’s birthdays

j)with the parent who is not otherwise caring for the children on the children’s and parent’s birthdays as follows:
(iii)on a school day from the conclusion of school until 7 PM
(iv)on a nonschool day from 10 AM until 2 PM

Other times as agreed

k)at such other times as agreed between the parties

The children’s live with arrangements pursuant to paragraph 3(a) hereof be suspended during school term and Christmas holidays and resume as if the holidays had not occurred.
X attend (omitted) School in (omitted) for her secondary schooling.
Y attend (omitted) primary school in (omitted) for the completion of her primary schooling, and (omitted) School in (omitted) for her secondary schooling.
The parents forthwith do all acts and things and sign all documents required for the children to attend Dr R psychiatrist, or such other suitably qualified child psychiatrist as may be agreed between the parties, for counselling and education about the mother’s psychiatric condition, and the cost of same are to be shared equally by the parties.
In order to facilitate the children’s counselling and education pursuant to paragraph 6 hereof, Dr R, or such other psychiatrist as agreed by the parties be provided with a copy of the following documents filed in this proceeding:
l)family report of Mr T;
m)report of Dr F;
n)report of Dr D;
o)these reasons for judgment;
p)such further or other documents filed in the proceedings as Dr R, or such other agreed psychiatrist, may request.
Both parents utilise the services of Dr L, or such other general practitioner as may be agreed, for the children, save and except in the case of an emergency.
All non-school changeovers occur with the mother delivering the children to the father’s residence at the commencement of time and the father delivering the children to the mother’s residence at the conclusion of time.
Each parent is at liberty to obtain from the children’s schools all notices, letters, school reports and invitations and to attend parent teacher interviews or activities to which parents are invited.
Each parent notify the other as soon as practicable of any medical emergency involving the children or either of them, or if the children require specialist medical treatment or hospitalisation whilst the children are in their respective care.
Each parent facilitate the children or either of them, communicating by face time, telephone, or other electronic means, with the other parent, in accordance with the children’s wishes, and additionally at 6 PM, each Monday and Thursday during any school holiday time with the other parent.
Each parent ensure the children’s school uniforms, sporting uniforms and any notice from the school are exchanged between parents and/ or returned with the children.
The parties communication we with each other be limited to arrangements for the welfare of the children and implementation of these orders.
Each party be and is hereby restrained from:
(i)denigrating the other party in the presence of or hearing of the children or allowing any other person to do so
(ii)discussing the proceedings with the children or either of them
The parties forthwith do all acts and sign all documents necessary to ensure:
(i)the children have a current Australian passport.
(ii)immediately upon issue of the children’s passports, the passports are lodged with the Melbourne registry of the court, subject to release by written consent of both parties or court order
Pursuant to s117 (2) of the Child-Support (Assessment) Act 1989, in addition to any periodic assessment of child support, the father pay one half of the following expenses:
(i)the children’s school fees at (omitted) primary school and (omitted) School, or such other mutually agreed school, until the conclusion of their secondary education
(ii)the children’s uniforms, excursions and textbooks.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2678 of 2014

MS BUCKINGHAM

Applicant

And

MR SIMM

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is the mother and the respondent is the father of the children X born (omitted) 2004 and Y born (omitted) 2008.
The mother seeks :
i)To relocate the two children from (omitted) to (omitted) which would reduce the children’s current time with their father and necessitate a change of schools for both children;
ii)That she has sole parental responsibility for decisions concerning the children’s education and health;
iii)That the children be permitted to travel overseas with her.
The father:
i)Opposes the children’s relocation and seeks that they remain in (omitted);
b)Seeks that their time with him be increased to a week about regime;
c)Seeks that both parents have equal shared parental responsibility, except that if the court considers one parent should be the preferred decision maker for the children, it should be him;
d)Opposes the children travelling overseas with the mother.

Background

The mother was born on (omitted) 1966 and is aged 51. She is employed as a part time (occupation omitted) and is completing a (course omitted) at the (omitted) University. The father was born on (omitted) 1962 and is aged 55. He is the owner and principal of a (business omitted) in (omitted).
The parties commenced cohabitation in 1992 in (omitted) and married on (omitted) 1993. They separated in 1999 and divorced on 10 July 2002.
In 2003 the parties reconciled and the mother moved to Brisbane where the father was studying (qualifications omitted). They then commenced a de facto relationship.
The mother attended the (omitted) Hospital in (omitted) 2003, when the father arranged an appointment for her. The father reported that she was paranoid that (vehicles omitted) were chasing her and the television was talking to her.
X was born in (omitted) and Y was born in (omitted) 2008.
In 2008 the father contacted a GP and told the doctor that the mother thought an old boyfriend, Mr C, who was a (occupation omitted), was following her in an (vehicle omitted).
In 2011 the family moved from Brisbane to (omitted).
The mother consulted Dr F, psychiatrist in March 2012.
On 11 January 2014, the parties separated when the father left the family home.
On 8 August 2014 final property and parenting orders were made by consent, which provide for the children’s current living arrangements. The children live with their mother. During the school term they spend time with their father each alternate weekend from the conclusion of school Friday to commencement of school Monday morning, and each Wednesday overnight. They also spend extended holiday time with their father.
Between 2014 and 2016 the mother reported that Mr C was in the (omitted) area, which culminated in her making an application for an intervention order against him in March 2016.
On 24 March 2016 the mother issued an application initiating the current proceedings.

The proposals of the parties

The mother’s proposal

In summary, the orders which the mother seeks from the court as follows:
i)The parties have equal shared parental responsibility for the children, save that the mother has sole parental responsibility for issues relating to the children’s education and health;
ii)The children live with the mother and she be permitted to relocate the children to Melbourne;
iii)The children spend term time with the father each alternate weekend from the conclusion of school Friday until 5 PM Sunday, and each Wednesday from the conclusion of school until 7:30 PM;
iv)The children spend holiday and special occasion time with the father;
v)Both parents enable the children to have current Australian passports and that each party be at liberty to take the children overseas, and in particular to (country omitted) with the mother, to attend a wedding, from (omitted) 2017 to (omitted) 2018;
vi)The husband be restrained by injunction from consuming alcohol and cannabis whilst the children are in his care.
The minute of final orders sought by the mother is set out at paragraph D of the mother’s Outline of Case, filed 27 February 2017.

The father’s proposal

In summary, the orders which the father seeks from the court are as follows:
i)The children live with each parent on a week about basis, with change over to occur on a Monday;
ii)The children continue to attend their current schools in the (omitted) area and that Y attend (omitted) School for her secondary schooling;
iii)The children attend a suitably qualified clinician to provide therapeutic counselling and the cost of which is to be shared equally by the parents;
iv)The parties utilise the services of Dr L or another agreed General Practitioner for the children;
v)The mother undertake treatment for her psychiatric condition, comply with all treatment and therapeutic recommendations of her treating clinician, keep the father advised of her current treatment and authorise an annual report to the father;
vi)A restraint on the parents removing the children from Australia, without the written consent of the other parent;
vii)In addition to the periodic child-support, the father pay one half of the children’s school fees to the conclusion of the secondary education.
The minute of final orders sought by the father set out at paragraph B of the father’s amended Outline of Case filed 27 February 2017.
Documents relied upon by the mother:
a)Amended Application filed 3 February 2017;
b)Affidavit of mother sworn and filed 3 February 2017;
c)Financial Statement of mother sworn and filed 3 February 2017;
d)Affidavit of Dr F sworn 7 February 2017 and filed 8 February 2017;
e)Affidavit of Dr D sworn and filed 27 February 2017;
f)Affidavit of Mr T sworn and filed 3 February 2017.
Documents relied upon by the father:
a)Amended Response filed 20 February 2017;
b)Affidavit of father sworn and filed 20 February 2017;
c)Financial Statement of father sworn and filed 20 February 2017;
d)Affidavit of Ms P sworn and filed 20 February 2017;
e)Affidavit of Dr D sworn and filed 27 February 2017;
f)Affidavit of Mr T sworn and filed 3 February 2017.

Witnesses

The mother gave some limited evidence and was cross-examined, apart from the professional witnesses; she did not call any other witnesses.
Her demeanour whilst giving evidence, and being cross-examined, was slightly theatrical and unusual. She attempted to justify, rationalise and minimise her psychiatric history, and in particular the “unexplained events” and her delusions about Mr C. I have no doubt that she is a committed and caring mother. However there seemed to be a lack of consideration of the reality and consequences of her proposals. She endeavoured to give evidence in a truthful fashion, consistent with her beliefs and perceptions of events.
The father was cross-examined. He gave evidence in a quiet and understated fashion and appeared to me to be a witness of truth. He was not prone to exaggeration.
The mother’s sister, Ms P was cross-examined. She was visibly distressed when recounting the breakdown of her relationship with her sister. Her recollection of past events was detailed and specific. I was not left with the impression that there was any vindictive motive in her giving evidence on behalf the father, rather a concern about the welfare of her two nieces. She impressed me as a witness of truth.
Each of the three professional witnesses were cross-examined Dr F, Dr D, and Mr T. All impressed as competent and truthful professional witnesses, who were prepared to make concessions when appropriate.

Issues in dispute

The following issues are in dispute between the parties:
i)The impact of the mother’s mental health on the welfare of the children;
ii)Whether it is appropriate for the mother to have sole parental responsibility for decisions pertaining to the children’s education and health;
iii)Relocation of the children from (omitted) to Melbourne, as proposed by the mother;
iv)The parenting arrangements best suited to ensure the welfare of the children, including consideration of a decrease and or increase in the children’s current time with their father;
v)The appropriate schooling arrangements for the children;
vi)International travel for the children;
vii)Payment of ancillary educational expenses.

The Applicable Law

The mother is seeking to relocate with the children, X and Y, from (omitted) to Melbourne.
Relocation cases are determined in the same manner as all parenting cases, namely by following the statutory framework set out in the Family Law Act 1975 (Cth), to determine what orders are in the children’s best interests.
In Taylor v Barker [2007] FamCA 1246, their Honours Bryant CJ and Finn J at [53] said:
[W]hen dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child's future living arrangements, at least in so far as that approach is possible (see U v U (2002) 211 CLR 238 ; (2002) FLC 93–112 and Bolitho & Cohen (2005) FLC 93-224).
In Cowley v Mendoza [2010] FamCA 597, His Honour Murphy J stated at [30] as follows:
A "”relocation case" is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances. A relocation case falls to be determined like any other parenting case.
Referring to relocation cases, His Honour Justice Kent in Heath and Hemming (No.2) [2011] FamCA 749 at paragraph [101] stated:
Whilst the statutory framework does not deal differently or specifically with cases involving a proposed relocation from other parenting cases, such cases attract the description of “relocation cases"” because they bring into sharp focus the central issue of balancing statutory imperatives concerning children's best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both “best interests" considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of "“best interest” may well mean that one party's choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child's “best interest” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
Part VII of the Family Law Act1975 (Cth) sets out the provisions relating to children. Section 60B sets out the objects of the act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the act sets out how court is to determine what is in a child’s best interests.
The court must consider the matters in s.60CC(2) (the primary considerations) and s.60CC(3) (the additional considerations) of the Act. Each of those matters, where relevant, must be considered and assessed in the context of the respective proposals. The court must then determine which of the proposals is in the children’s best interests.
As the Full Court (May, O’Ryan & Strickland JJ) observed in Collu & Rinaldo [2010] FamCAFC 53 at paragraph [355]:
“[I]n determining best interests the obligation is to ‘consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all those matters, a trial Judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out”
The court is not bound by the party’s respective proposals. (AMS v AIF [1999] HCA 26 and U v U [2002] HCA 36).
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.

Section 60 CC(2) of the Act provides that:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will firstly consider the primary considerations of the act.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

At paragraph [104] in Heath v Hemming (No.2)(supra), after having reviewed the authorities in relation to the benefit of a child having a meaningful relationship with both of the parents, Justice Kent said:
Clearly, if it is determined that a meaningful relationship with both parents is in the child's best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child's age and level of maturity (s 60CC(3)(g)) may assume particular importance. This may also lead a court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a "meaningful relationship" with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.
The mother’s evidence is that she views the relationship between X and the father as problematic. To a lesser extent, she also asserts the relationship between Y and her father is problematic.
She was relentlessly critical of the father and his behaviour towards X and Y in the context of :
i)Refusal to allow X to attend (omitted) School;
ii)Wait and see approach in relation to X’s sexuality;
iii)Reluctance to allow X to attend “(omitted)”;
iv)Refusal to refer to X as “X”;
v)X’s comments at the (omitted) Hospital, about her mental state.
The mother considers the father’s parental capacity is responsible for:
a)X’s professed desire in Christmas 2014 to go to sleep and wake up in two weeks, rather than spend holiday time with her father;
b)X’s comments in 2015 that she wanted to alter her proposed two week holiday time with her father;
c)Both children vomiting, and experiencing stomach cramps and other physical symptoms following time with their father.
In her Final Written Submissions the mother asserts:
a)In 2016 X’s “dissatisfaction manifested itself such that she required hospital admission”;
b)She “has sought professional assistance to try and improve the children’s relationship with their father, but that he has refused and/or failed to participate at any level beyond a single attendance at the GP”.
Unsurprisingly, the father’s evidence about his relationship with the children is completely contrary to the mother’s. He perceives that he enjoys an excellent relationship and secure bond with both children. He refers to a shared sense of humour and private jokes with X.
Mr T, the family report writer concurs with the father’s view of his relationship with the children.
The following exchange occurred when Mr T was cross-examined by counsel for the mother:
Yes. And X, she expressed during the interview some great dissatisfaction with her father?   That’s correct, yes.
And did you form the view that these were genuinely held beliefs?   No, I didn’t.
…
And X refuses to be seen with her father when she’s in the interview process with you?   She is. There is some contrary behaviours to that which I think are a contraindication to what she was saying about that. Indeed, and if your Honour is – will allow me to say some observations around what I saw in the waiting room?
HER HONOUR:   Yes, certainly? – While she was refusing to be interviewed with the father, during the course of a very long assessment she sat with her father in close proximity in a very affectionate manner on and off throughout the whole of the interview. And that was quite inconsistent with her not – with her showing fear or anxiety around being interviewed with her father.
Y stated to Mr T that she enjoyed spending time with both parents, although she was confused by the parental conflict. She reports a good relationship with her father and she has no concerns about the current spending time arrangements. Y stated that X was closer to their father and has the best relationship with him. She said:
“X is always really nice to dad and they never argue, but she is not as nice to mum”.
Having considered the evidence of both parents and Mr T, I find that both children have a meaningful relationship with their father, and that it is in their best interests for that relationship to continue.

Section 60 CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

Fortunately for the X and Y there are no allegations by either parent of the children being subjected to physical harm, or exposed to, abuse, neglect or family violence, say that they are obviously both aware and involved in the parental conflict.
The parents make allegations of historical family violence against each other, however these allegations were not pursued at trial.
The mother asserts that the father’s communication with her is controlling and coercive. She also told her treating psychiatrist, Dr F that the father was abusive.
The father has significant concerns about the children’s alignment, involvement in, and acceptance of the mother’s delusional beliefs. The mothers psychiatric condition is referred to in the context of s.60CC(3)(m).
X told Mr T that she was aware the mother was concerned about being followed by (vehicles omitted) and on occasions had been asked to take photos of vehicles following them whilst out driving with her mother. Despite the mother’s evidence that this had occurred on one occasion only, Mr T clarified that X had reported this occurring on multiple occasions. According to Mr T, X did not perceive her mother’s preoccupation and apprehension with these vehicles as unusual.
Both children believe that strangers came into their home, with malevolent intent, during the night or whilst they were out and broke damaged, disturbed or moved various items in the house. X referred to the account of the slashed T-shirt, about which the mother also gave evidence. Neither child appeared scared or frightened of these strange and disturbing events and did not view them as unusual or concerning.
The comments and attitude of both the children is of enormous concern to the father and is indicative of their psychological vulnerability. I share the father’s concerns and find it inconceivable that two young girls remain unconcerned and untroubled about the prospect of a stranger entering their household in their absence. The mother’s beliefs about these events are discussed further in this judgment.
It is apparent from the mother’s evidence that she is unable to exclude and protect the children from these irrational beliefs.
The mother’s sister, Ms P swore an affidavit which was filed on behalf of the father, and was cross-examined.
I refer to paragraph 26 hereof concerning my observations of Ms P as a witness.
Paragraph 13 of Ms P’s affidavit refers to conversations she had with the mother, during the course of which the mother disclosed to her that she had blindfolded the children whilst they were travelling in a car. These conversations took place in or about 2011 whilst the parties were still living in Brisbane.
The mother denies the allegation. During cross-examination, counsel for the mother suggested to Ms P that she had contacted the mother’s GP in 2013 and had not mentioned the mother’s preoccupation with (vehicles omitted) or blindfolding the children.
Ms P’s response was detailed in her recollection. She conceded that she had possibly not mentioned the children being blindfolded by their mother, as she was concerned by a number of other events as well. She recalled conversations with the mother about (vehicles omitted) chasing her on two or three occasions. She had always been alarmed about these conversations and concerned for the safety of the children. She was able to provide other examples of matters which preoccupied the mother and which were discussed. They were as follows:
i)Somebody on a motorbike was following her on a regular basis;
ii)Someone was coming into the house and messing up the children’s toys.
She was able to provide details of where she was living and her personal circumstances at the time of the conversations. I find Ms P to be credible and a witness of truth and I accept her evidence.
The additional considerations are set out in s.60CC (3) of the act. I will now consider the additional considerations.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

At the time of the family report Y was aged eight and attending (omitted) Primary School in grade 2. She is now in grade 3 at the same school.
Y’s views about spending time with her father are apparent from the family report. As referred to at paragraph 50 hereof, Y perceives she has a good relationship with both parents and enjoys spending time with both of them. She has no concerns about the existing arrangements for her to spend time with her father.
Mr T attempted to ascertain her views concerning the relocation, change of school and reduced time with her father. However, he reports that she became evasive and shy, avoided eye contact and was unable to answer. She appeared fatigued at the end of a long day and Mr T did not press her to answer. Her specific views about a week about arrangement, as proposed by the father, are not known and at the time of her interview with Mr T, and that was not the father’s position.
It is also apparent from the family report that Y is unaware of her mother’s mental health, as she did not consider strange occurrences in the home and the appearance of (vehicles omitted) while out driving to be unusual or concerning.
Y is nine years old and there is no evidence to indicate that she is progressing, other than in an age appropriate manner. Mr T describes her as readily engaged, undefended and answering questions to the best of her ability. Mr T, reports that Y presents as well integrated and settled in her school community.
X’s views are somewhat more complex than those of her sister.
At the time of the family report, X was aged 12 and in grade 6 at (omitted) primary school in (omitted). She now attends (omitted) School in year seven, and according to both parents is progressing well and enjoying secondary school.
Mr T reports that X presented “as articulate, assertive and somewhat combative in her approach to the interview”.
Both parents agree, as identified by Mr T that she presents with above average intelligence. The mother considers X to be particularly intellectually gifted.
At the time of the interview, X was uncertain about which school she would be attending for her secondary education. Mr T describes her as feeling ignored by her father hindering her pathway to (omitted) School. She viewed her father’s resistance to the mother’s proposed relocation as “a punitive act of revenge against her mother because of the separation but was unable to give a coherent explanation for her beliefs around this statement”. X seemed particularly focused on her secondary schooling during the interview with Mr T.
During a family assessment, X declined to be interviewed with her father to discuss these issues on the basis that she would not be able to fully express her views in his presence.
When asked to comment on Y’s observations about the closeness of her relationship with her father and her eagerness to please him, Mr T reports that X appeared surprised and slightly embarrassed by this view of her relationship with her father, and stated: “I do everything dad says because I am terrified of him, he drinks a lot all the time and I don’t want to be interviewed with him”. Mr T opined that “X’s presentation and delivery of that statement appeared reactive and defensive and her response was somewhat out of proportion with the benign nature of Y’s comment”.
In stark contrast to X’s articulated views, Mr T observed both children with their parents in the waiting room during the assessment process. He considered he had ample opportunity to observe the children with their parents. He concluded that the children move between their parents without any sign of anxiety or apprehension.
The children displayed an affectionate and close relationship with both parents and this was mirrored and reciprocated by the parties. Both parties were intuitive and responsive to the children’s needs throughout the process and X and Y appeared at ease and relaxed in the care of both parents.
As is the case with Y, X was unaware and naive about her mother’s mental health issues. She also appeared unconcerned about her mother’s preoccupation and apprehension about being followed by (vehicles omitted) and other vehicles and the prospect of strangers entering her home, whilst she was either asleep or absent.
The mother submits that X reiterated her views about the dysfunctional nature of her relationship with her father, when she was admitted to the (omitted) Hospital on Boxing Day 2016. The mother asserts that X’s views may be summarised by her not feeling understood, listened to or cared for by her father and that she finds that deeply distressing.
Whilst I accept X made the statements as recorded in the (omitted) Hospital notes of her admission (Exhibit M3), it is not clear from the notes, whether the mother was present at the time, X made those complaints or whether X was acting independently.
Mr T’s oral evidence about X being caught in the triangulation of the parental conflict is extremely informative. When asked by me how to explain the father’s reports of an excellent relationship with X, having lots of fun, sharing jokes and watching comedy together, his explanation was:
How I would explain that is that X’s reporting in the context of this dissonance and in the context of this triangulation and this dispute is – is probably largely unreliable. So her conflicts with her mother are not as great as she reports them and the type of life that she experiences with her father when she’s there is – is not as bad as she’s reporting it.
So in fact she’s telling each parent what she thinks they want to hear?   Yes.
But she manages to move in both worlds?   She manages to move quite successfully in both worlds, yes.
Because     ?   If I could just elaborate on that. The impression I got from Y and X is that there were less activity based things going on at the father’s and as a result of that there was a lot more quiet time; there was a lot more reading; there was a lot less TV and it was actually – there was actually a sense that they found it relaxing. But they were unable – but they – they didn’t use those words, but that was the – the inference that I gained from – from – less so from X, but more so from Y. Y is absolutely resistant to saying anything positive about her father.
Y is?   No, X, sorry.
X?   Yes.
I am mindful of the overwhelmingly positive observations of Mr T when the children freely moved between their parents. This is not indicative of a child who is frightened or apprehensive of the parent as is completely contrary to X’s negative and often derogatory comments about her father.
Mr T comments:
X’s reporting of a hostile relationship with her father is not borne out by the anecdotal material of Y or Mr Simm, who reports a close and affectionate relationship with both children. Her rejection of this positive and alternative narrative was unconvincing and at odds with her interaction with Mr Simm during the course of the assessment.
Whilst I place some weight on X’s professed views, these views must be placed in the context of X being enmeshed in the parental conflict and her inability to freely articulate her real views. As referred to earlier hereof, in this context, Mr T considers what she says is probably largely unreliable.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)

Y’s relationship with her parents is unremarkably positive, and as Mr T notes, she is less triangulated into the parental conflict.
I have previously referred to Y’s positive views of her relationship with each of her parents and the informal observations of Mr T of Y and her parents during the assessment interviews. Of particular importance is the observation that the children displayed an affectionate and close relationship with both parents, which was mirrored and reciprocated by the parents.
As with X’s views, the nature of her relationship with each parent is more complex.
X reported to Mr T that despite significant levels of conflict with her mother, she felt more emotionally connected and closer to her mother than her father. I do not doubt that despite periods of conflict, X enjoys a positive relationship with her mother.
There was evidence that following arguments with her mother, X would flee to her father’s home. Mr T’s oral evidence was that the arguments between X and her mother are much more frequent than they are with her father. She runs away from her mother and seeks out her father. He commented:
“Now, this is not the behaviour of a child that is frightened or worried or overly concerned about the father – about her relationship with her father. So yes, she is triangulated. Yes, she has a tendency to project these feelings out onto the father. Why, I don’t know, but it is not as simple as… the inference in your questioning is that it is somehow to do with the father’s inappropriate or poor parenting”.
The observations of Y and her parents during the interview process, referred to in these reasons are equally applicable to X.
The impression I am left with is that the father was sincere and straightforward in describing his experiences of his relationship with X. The objective observation of Mr T confirms the father’s perception of his relationship with X. He appeared sincerely bewildered and perplexed by X’s negative comments about him, which were in stark contrast to his experiences and independent observations of X and her father. At times he was even unaware of some of X’s alleged grievances about him. An example of this was his evidence that he did not know that X wished to be referred to as X, as she had never mentioned this to her father. He and X apparently have other pet names.
The father’s evidence about his reaction to X’s alleged coming out as gay, was measured and appropriate. I am in no way critical of his cautious response.
X’s comments to Mr T, about her memories of family life and the parental conflict and attributing blame solely to her father are concerning. Mr T notes that X was unable to provide details of specific events or incidents and her language and account was in similar to that of her mother.
There was no issue about the children spending time with a grandparent or any other relative.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child

Participation in making decisions about major long-term issues in relation to the children

The parenting orders made by consent on 8 August 2014 provide for the parents to have equal shared parental responsibility for X and Y.
Prior to the issue of X’s proposed secondary school, there was no evidence that either parent had failed to participate in decision-making about the children’s education.
The impetus for the current proceedings was the mother’s desire for X to accept a scholarship at (omitted) School, which involves a relocation of the children from (omitted) to Melbourne.
On 30 November 2016 orders were made by consent that X commence secondary schooling at (omitted) School. The parents were at least able to reach agreement about interim schooling arrangements for X.
The parties are in agreement that if the children are required to remain in (omitted), Y should complete her primary education at her current school and will commence her secondary education at (omitted) School.
Both parents have participated in decisions about the children’s education.
The mother alleges that the father has failed to participate in decision-making about the children’s health issues, specifically, that he has failed to consent to the children seeking counselling, psychological or psychiatric care and obtain appropriate medical care for physical symptoms.
The father, in contrast, gave evidence about his consent, that the children attending counselling with Ms B, and his attempts to obtain a report from her as to their progress.
It was agreed between the parties that the father had attended upon the children’s GP, Dr L to discuss referral of both girls to a child psychiatrist, Dr V. This is referred to at paragraph 206 hereof. Due to Dr V being unavailable to treat the children, the children were subsequently referred to Dr M, child psychiatrist, where Y was accepted as a patient. Dr M did not consider X to be her patient. The dispute about these events is referred to under the heading “Children’s continuing attendance on a mental health professional.”
Whilst both parents seek to blame each other about lack of communication as to which child psychiatrist would treat the children, and what actually transpired, it is apparent that both sought to participate in decision-making about the children’s mental health practitioners.
The mother is also critical about the father’s failure to obtain medical treatment following X breaking her wrist in the April 2015 school holidays. The father is similarly critical of the mother flying to (omitted) without first seeking medical treatment for X.
I find that both parents have at all times sought to be involved to participate in decision-making about the children’s physical health issues although at times each failed to promptly advise the other parent.

Opportunity to spend time with and communicate with the children

The children primarily live with their mother and there were no allegations that she had failed to spend time or communicate with them.
The children currently spend five nights per fortnight with their father and a half of all holiday times. The father has consistently sought to spend as much time as possible with the children. He is however critical of the mother’s actions during the long summer 2016 holidays, as she failed to return the children to him after Christmas day, as provided by the current parenting orders.
The father’s current proposal is that the children live week about with each parent, and he therefore seeks additional time with the children.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The father pays child support to the mother in accordance with an administrative assessment of child support. His financial statement sworn 20 February 2017, at paragraph 31, states that he pays child support of $500 per week for X and Y.
The orders of 30 November 2016 provide that the mother pay X’s school fees at (omitted) School.
Both parents agree that in the future they will jointly share the school fees of both children during their secondary education. The only dispute remaining is whether the parents should equally share the costs of books and uniforms or each pay for books and uniforms in their respective households.
I find that each parent has fulfilled their obligations to maintain the children.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The mother proposes to relocate the children from their current home in (omitted), where they have lived since 2011, to Melbourne. She hopes to obtain accommodation in the (omitted) area, which is near (omitted) School, where she proposes X will attend.
(omitted) is located 1 ½ hours’ drive from Melbourne and the practical reality of the mother’s proposal is that the children cannot spend the substantial and significant term time they currently spend with the father because of the distance between (omitted) and Melbourne.
If relocation is allowed, the mother proposes that the children spend each alternate weekend with their father from Friday to Sunday, and every Wednesday night for a meal.
Irrespective of the mother’s assertions that the arrangement she proposes will enable the father to see the children with some degree of frequency, there will inevitably be changes in the qualitative time the children spend with their father.
Their schools will change notwithstanding that both parents agree that X is now enjoying and progressing well at (omitted) School.
Other than X’s professed affinity with the type of student at (omitted) School and her enthusiasm for the philosophy of the school, there is no evidence of a ready network of friends and family in Melbourne. Mr T comments as follows:
X’s view of (omitted) School as the answer to her current difficulties and dissatisfactions is somewhat naive and unrealistic and, like much of her narrative around the educational issues, tended to echo and reflect her mother’s views.
Y tells Mr T that she is settled and unequivocally tells him of her desire to remain at her current school in (omitted).
Their living environment will change from a country town to a city suburb, they will be removed from the local networks of friends and activities and proximity to their father. The time with their father will be significantly reduced and the time with their mother will of necessity be increased.
The mother is of the view that the reduction of time would have little impact on his relationship with the children and the father has been under involved in the children’s lives. According to Mr T, the predominant issue for the mother, during the interview process was X’s schooling and the necessity to resolve that issue, prior to the commencement of 2017. That has now been resolved by the effluxion of time, at least on an interim basis. He is of the view that the mother:
…appears to have given little thought to the impact of the move on Y and is less concerned with the impact of the relocation on the children’s relationship with Mr Simm.
The father disagrees with the mother’s assertions about his parenting contribution and involvement in the children’s lives.
The father is significantly concerned about the proposed reduction of his time and involvement with the children, in the context of the mother’s mental health difficulties.
According to Mr T, the crux of the dispute is:
…the allegations pertaining to the Ms Buckingham’s mental health difficulties and the impact of this issue on her parenting capacity.
I agree with Mr T’s assessment.
Mr T comments that the mother was vague and difficult to follow when providing an account of her mental health history. He also noted that:
…her responses indicated a lack of insight and a level of denial around her previous diagnoses.
The father is particularly concerned about the extent that the mother may have involved the children in her delusional beliefs. Dr D described the involvement of the children and exposure to the mother’s delusional beliefs, as “unconsciously and unwittingly” being invited to align or join in with the mother’s delusional behaviour.
It is evident from the comments of both children that X has been involved in taking photographs of (vehicles omitted) at her mother’s request, and that she accepts her mother’s explanation of disturbing and frightening events in home, without being perturbed. She also accepts that an unknown intruder regularly visits her home whilst she is either asleep or absent.
Y does not objectively question the unexplained occurrences in her home, and considers them to be a matter for adults.
Mr T is of the view that the children have been exposed to the beliefs and behaviours of their mother’s episodes of delusional behaviour. At paragraphs 49 and 50 of the family report. He states as follows:
49. X presented as an perturbed by this prospect and this lack of concern speaks to the “unconscious and unwitting” alignment described by Dr D. It is the writer’s view the children have been unconsciously and incrementally exposed to the beliefs and behaviours of Ms Buckingham’s episodic delusional behaviour. This gradual inculcation has become a background narrative to their lived experience which makes the incongruence of these behaviours and everyday part of their lives and, in X’s case, it has now become incidental to her preoccupying adolescent concerns and identity issues.
50. While Ms Buckingham’s episodic delusions/psychosis are seen as somewhat benign and, by all accounts her parenting between episodes is child focused and largely unaffected, her condition is long-standing and cyclical and is most likely reactive to variety of external stressors.
Mr T considers that the proximity of the father to the children and substantial time he spends with them provides a counterbalance and acts as a protective mechanism for the children in relation to their mothers mental health problems.
At paragraph 51 of the family report he states as follows:
There is no clear prognosis or trajectory for Ms Buckingham’s condition. The current arrangements provide for substantial relationship between Mr Simm and the children and this acts as a safety net in the context of Ms Buckingham’s mental health difficulties.
In short, apart from social and educational upheaval relocation and separation from their father would remove a counterbalance and safety net for the children in relation to their mother’s ongoing mental health difficulties.
There was no evidence about the likely effect of any changes in the children’s circumstances in relation to any other child or person.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

Melbourne is a one and a half hour drive from (omitted), which as a matter of practicality reduces the time the children can spend with their father to weekend and holiday time, subject to the father’s availability on a Wednesday evening.
If the father is able to arrange his work commitments to enable him to have an evening meal on a Wednesday, then this will occur, although it will involve a 3 hour round trip for the father.
There was no evidence that the expense of travel would preclude the children spending time with their father.
Both parties agreed that the travel for weekend time should be shared between them, although it is the mother’s expectation that the father would drive to Melbourne from (omitted) every Wednesday evening. There was no suggestion that the children would travel from Melbourne to (omitted) for an evening meal on a weeknight.

Section 60CC(3)(f) the capacity of:

(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs

During their relationship the parents adopted traditional roles in the family, with the mother as primary care giver to the children and the father as the principle income earner.
Apart from her mental health difficulties, the mother is able to provide for the physical needs of the children. The risk to the children from their mother’s mental health difficulties is the potential for them to be drawn into her delusional beliefs and behaviours.
The father is able to provide for the needs of the children. Dr D opined that he did not present with any signs of mental problems and that he was an engaging, affable, decent and reasonable.
My observations of the father whilst being cross-examined and during the four days of the hearing concur with those of Dr D.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

Y is now nine years old and is in grade 3 of her primary school. She is progressing well at school, save that she finds mathematics challenging, and is approximately 6 months behind in that subject. Apart from adjustment difficulties following parental separation, as identified by Dr M, there are no other relevant characteristics.
X is now 12 years old and is in year seven at (omitted) School.
Both parties agree that X is intellectually bright. The mother describes X as intellectually gifted.
The mother alleges that X’s superior intelligence has led to her being bullied and ostracised at her primary school. The father disagrees with this assertion, and relies on the observations of Ms S, who states, in the context of her assessment of X: “X expressed she had a good set of friends and felt happy coming to school.”
There may well be social implications arising from X’s superior intelligence, as identified by Mr T. He is of the view that X:
“…assumes a defensive and sometimes reactive demeanour if she perceives her view is being challenged. At times, she was offhandedly disparaging of her peers whom she perceives as being less socially aware and less intelligent. Her propensity to iconoclasm and feigned boredom has a somewhat anxious and studio mature flavour that masks a vulnerability and insecurity that is difficult to reach”.
At the mother’s behest, X sat exams for a number of scholarships at schools in Melbourne and for entry at selective secondary colleges.
She was offered a partial scholarship at (omitted) School. According to the mother, X’s desire to accept the scholarship and attend (omitted) School with students whom she thought were “her kind of people” was a significant reason for wanting to relocate to Melbourne.
Both parents agree that X has settled into secondary school at (omitted) School and is progressing exceptionally well. The mother was not critical of (omitted) School and indeed consented to orders on 30 November 2016 that X attend (omitted) School for year seven and that she be responsible for payment of the fees.
At the beginning of grade 6 in 2016, X informed her parents that she was gay. The mother is supportive and encouraging of X’s expression of her sexuality. She sought the father’s permission for X to attend a youth group, (omitted), which is primarily focused on gay and transgender young adults aged between 12 and 25.
The father adopted a more cautious approach to X’s sexuality and suggested to X that she may wish to adopted a wait and see approach, rather than a definitive decision at her age. X was apparently unable to recognise any merit in her father’s approach.
The father made enquiries about (omitted), however, would not consent to X attending as he was concerned about his 12-year-old daughter potentially socialising with adults up to 25 years of age. He considered that age inappropriate for a 12-year-old. I consider that decision to be entirely reasonable.
The mother’s evidence was that X wishes to refer to herself as “(omitted)”. It was not clear whether that name was related to her sexuality or any aspirations of transgender sexuality. The mother was critical of the father in refusing to do so, however, the father’s evidence was that he was completely unaware of X’s desire to be referred to as “(omitted)” as she had not raised that with him.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;

This is not a relevant consideration.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

Both parties are loving, caring and responsible parents.
However, the mother’s mental health difficulties impact on her parental capacity, particularly the unwitting inclusion and involvement of the children in her delusions and lack of insight into her illness.
This is extensively referred to at paragraphs 171 – 183.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

Apart from both children’s awareness of the parental conflict and having witnessed arguments prior to separation, there are no current issues of family violence, as regards the children.
The mother alleges that the father is overbearing, coercive and controlling in his communication with her.
Having observed the father in the witness box and during the trial his demeanour was not as alleged by the mother. My overwhelming impression and assessment was that the father gave answers in a reasonable fashion, was not critical of the mother and seemed to be justifiably concerned about the children and their exposure to their mother’s delusional beliefs and behaviour.
His email communication with the mother was brief, succinct and matter of fact. His explanation was that he did not wish to be drawn into protracted email exchanges with the mother, in the event he disagreed with her opinion, or respond to her criticism of his parenting.
I accept that evidence as entirely reasonable.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)         the nature of the order;
(ii)    the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)   any findings made by the court in, or in proceedings for, the order;
(v)     any other relevant matter

This is not a relevant consideration.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

Both parties agree that a resolution of the current dispute is highly desirable.
Both children need to know where they will be residing in the future and what schools, they will be attending.
Once the issue of relocation, choice of schools for the children and parental responsibility has been resolved, it is unlikely that the parties will relitigate. I intend to make prescriptive and comprehensive orders.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

The mother’s mental health and its impact on the children is a significant issue in this dispute.

There were two experts in relation to the mother’s mental health. Firstly, her treating psychiatrist, Dr F and secondly a single expert witness, Dr D, consultant psychiatrist, who was jointly engaged to provide psychiatric assessments of both parents.

Dr F

Dr F swore an affidavit on 7 February 2017. Annexure 3 to that affidavit is a letter addressed to the mother’s solicitors dated 24 November 2016, and annexure 5 to the affidavit is a report dated 13 January 2017.
Dr F had been provided with extracts from Dr D’s psychiatric assessment prior to the letter and had been provided with a copy of his report, prior to preparing her report annexed to her affidavit. Leave was granted to reduce some limited oral evidence and Dr F was also cross-examined by the father’s counsel.
Her reports may be summarised as follows:
i)Ms Buckingham first consulted her on 7 March 2012 in (omitted) and the frequency of appointments ranged between fortnightly, when more unwell or changing medications to 6 months when stable.
ii)The most likely diagnosis is delusional disorder (persecutory type) or other psychotic disorder (according to DSM 5).
iii)Some paranoid personality traits are also present, which have mainly been overvalued ideas rather than Frank delusions.
iv)Ms Buckingham’s long-standing preoccupation with “unexplained events” suggests a deeper more firmly held paranoid belief system.
v)Ms Buckingham has been diagnosed with postnatal depression in the past. However, there was no evidence of mood disturbance during the time that she had consulted with Dr F.
vi)Ms Buckingham develops more acute preoccupations/ delusions when under stress. These stresses have included custody arrangements, legal proceedings and decisions with regard to her daughter’s education and welfare.
vii)As from January 2017 the current treatment plan includes monthly appointments and commencement of a trial of an anti-psychotic drug.
viii)Mr Buckingham’s prognosis is exacerbated when stressed, however, the general course of her delusional disorder is chronically stable.
ix)Her condition has a limited response to medication, and there have been long periods, due to her endeavours to minimise distress to herself and the children, when she has been a very well and not required psychiatric input or medication.
x)Moving to Melbourne would most likely improve her mental health as it would offer close proximity to schooling for X and Ms Buckingham’s work in (omitted), geographical distance between herself and Mr Simm and would alleviate a previous chronic source of stress, namely three years of difficulty with her neighbour.
xi)Because of the nature of the delusional disorder, delusions tended to remain chronic and her ideas/beliefs may resurface in another location, which is supported by her history of paranoid ideas/delusions dating back to 2002 (Northern Territory) 2009 (Queensland) and 2015 (Victoria).
xii)Ms Buckingham has always held the care and well-being of the children as her foremost concern and at no time has her mental state adversely affected her ability to care for or make decisions in relation to the children.
xiii)Prompt resolution of the dispute is highly desirable to allow stability to return to Ms Buckingham and the children.
Dr F evidence in chief was that given the recent levels of stress she has shown, the mother is more capable of part-time work than full-time work. A reduction of external stresses may enable her to work more than part-time.
During cross-examination Dr F made the following comments/ concessions:
i)Once the current proceedings are concluded, one of the mother’s significant stressors will be removed.
ii)The report of Dr D was sufficiently concerning so that Dr F increased the frequency of the mother’s visits to her, from once every six months to about once a month.
iii)She agreed with Dr D, that the mother suffered both delusions of reference and paranoid delusions. Delusions of reference are when a person believes that a certain behaviour, gesture or event has meaning which it doesn’t. Paranoid delusions are where a person believes that someone is out to harm them or their property.
iv)She accepted that the Mr C story was a delusion, that delusion continued for a very long time whilst the mother was seeing Dr F, and Dr F did not realise that was the case.
v)Dr F was unable to say how deep the level of the mother’s delusions is because she did not notice them.
vi)She said a delusion was a fixed false belief.
vii)The mother withheld information about the Mr C delusion for at least two years, so that Dr F believed she was well, during that time.
viii)It was not until March 2016 the mother told her the episodic sightings of Mr C harassing her were the same delusions she had experienced in 2003.
ix)Dr F did not believe the reports of Mr C were delusional, as the mother told her that the police had located an address for him in (omitted), and she accepted that explanation, which was not true.
x)Dr F is of the view that Ms Buckingham continues to believe that Mr C is real and was stalking her during that period.
xi)Ms Buckingham has a psychotic condition which causes her to believe things that are not true.
xii)Ms Buckingham spends a lot of time telling Dr F that Mr Simm is difficult, abusive and controlling.
xiii)Ms Buckingham’s statements in her affidavits that she has never been described as having psychotic tendencies and that she has only ever been treated for depression, are not true.
xiv)The fact that Ms Buckingham had the same factual delusions (Mr C harassing and stalking her) in 2003 2009 and 2014 to 2016 demonstrates that she has only a superficial level of insight, which would make it difficult to treat her.
xv)There have been brief exacerbations of her psychotic episodes, but the underlying symptoms are chronic.
xvi)The moving objects, “unexplained events” in the house, stains and cuts on clothing in the house are delusional.
xvii)If the court finds that the children have adopted the mother’s delusions as reality, and have become aligned with her world, then their own mental health has been compromised.

Dr D

Dr D swore an affidavit on 27 February 2017. Annexure 9 of that affidavit is a copy of his report of the mother and the father, dated 14 November 2016.
He had the benefit of the viewing the mother’s medical records, which were provided pursuant to subpoena, from various treating medical practitioners. He was also provided with a copy of the audio recordings of the mother’s intervention order proceedings against Mr C in the Kyneton Magistrate’s court in March 2016, however, he was unable to open it. He received correspondence from the both practitioners in relation to what transpired at that hearing.
Dr D was cross-examined by counsel for both parents.
In relation to Mr Simm, Dr D concluded that he didn’t present with any signs of mental problems.
In relation to Ms Buckingham, Dr D’s report may be summarised as follows:
i)She didn’t present with overt signs of a mental disorder in the assessment nor as currently delusional, but did refer to experiences involving a former partner, Mr C , which seemed very suspicious of recent delusional ideation.
ii)She denied having ever been psychotic or formally diagnosed with a psychotic disorder
iii)In October 2003, Mr Simm organised an appointment for her at the (omitted) Hospital, as he reported that Ms Buckingham was paranoid that (vehicles omitted) were chasing her and the television was talking to her. Ms Buckingham denied these events, although she said that she was prescribed an antipsychotic medication, which she took for approximately 6 weeks prior to becoming pregnant with X.
iv)In 2008 Mr Simm contacted a GP and told him that Ms Buckingham thought that a former boyfriend, Mr C, a (occupation omitted), was following her in an (vehicle omitted). Ms Buckingham reported that she did not know why Mr Simm reported that she believed (vehicles omitted) were following her. She was referred to a psychiatrist and prescribed an antipsychotic medication.
v)She was referred to Dr F in (omitted) subsequent to moving to (omitted) and had not been prescribed medication since 2011.
vi)Ms Buckingham thought that Mr Simm had never had concerns for her health and well-being.
vii)She had a relationship with Mr C for a year, more than 16 years ago.
viii)She had no contact with Mr C until he allegedly turned up in (omitted), where she first observed him at a neighbour’s house and later on the roads to (omitted) and Melbourne.
ix)When Ms Buckingham attended the (omitted) Hospital fracture clinic in April 2015, she reported that she saw Mr C walk past, although he didn’t say or do anything.
x)She applied for an intervention order against Mr C in March 2016, however, the police were unable to locate him, although they supposedly had his address.
xi)She denied that she had claimed she had seen (vehicles omitted).
xii)She hadn’t seen Mr C since March 2016, but she remained certain he had been in the local area.
xiii)She was unable to consider that her beliefs around Mr C may be delusional.
xiv)She didn’t think she had ever been psychotic, although she vaguely conceded she may have misinterpreted her environment.
xv)Once she was out of the house for 10 minutes and when she returned there were some books on the floor and cat poo. She also noticed some strange things, including a back door open and property damage.
xvi)She was unable to explain property damage in her house and other “unexplained things”. She referred to X and X's T-shirt having being cut and noticing cuts and stains in clothing.
xvii)After reviewing the history contained in the medical records produced pursuant to subpoenae, she has very likely experienced psychotic episodes characterised by delusional ideation, ideas of reference and misinterpretation of her environment that has fed delusional beliefs.
xviii)The formal diagnosis is likely to be a form of delusional disorder or psychotic disorder not otherwise specified.
xix)Her most recent presentation of a psychotic relapse directly relates to Mr C being in the local area. She believed Mr C was stalking her in 2003, when she was prescribed antipsychotic medication, and she again believed he was stalking her in 2016, culminating in the intervention order in March 2016.
xx)She believed a number of odd things were happening in the family home.
xxi)On the assumption that Mr C was not in the local area, Ms Buckingham’s report of his presence represents a transient delusional state.
xxii)Her delusional states appear to have promptly resolved with medication and the passing of time.
xxiii)The main clinical issue is how best to manage Ms Buckingham, in the future, in the context of:
a.people with delusional disorders don’t present with thought disorder and disorganised behaviour, so they can superficially present well;
b.delusional disorders are often difficult to treat as patients characteristically lack insight;
c.antipsychotic medications are not always effective.
xxiv)When Ms Buckingham has been unwell, she doesn’t appear to have been a significant risk to the children, but indirectly her behaviour may be so peculiar that the children may be unconsciously invited to align with her and unwittingly join in.
xxv)Mr Simm’s concerns that Ms Buckingham lacks capacity to appropriately parent when suffering a delusional state appear to be reasonable and valid.
During cross-examination Dr D made the following comments/ concessions:
i)Generally people will often be more prone to experience psychotic symptoms when under stress.
ii)Because Ms Buckingham’s condition has relaxed and remitted over time, with a common theme of Mr C, stress is a relevant background factor but there is no certainty that it can be linked to Ms Buckingham’s condition.
iii)People with psychotic histories are more likely to develop psychotic states when under stress, but it doesn’t mean that they will not develop psychosis when they’re relatively stress free.
iv)In the context of a move to Melbourne, representing a less stressful environment, Dr D considered that it may not be possible to predict Ms Buckingham’s mental health trajectory.
v)In the context of obtaining a new employment, it is difficult to know how the various stressors would be balanced.
vi)He agreed that it could be uncomfortable for Ms Buckingham to be in the small town of (omitted), given Mr Simm’s prominent position in the local community.
vii)In the context of Mr Simm allegedly telling others in the community that she suffered from schizophrenia, it was understandable that Ms Buckingham may have suffered stress.
viii)In response to the proposition that if Mr C may have actually been in the (omitted) area, then the degree of Ms Buckingham ‘s delusions was not so significant, he said:
That if she did see a person, in reality, and he was present and it was Mr C, then that’s not a delusion. That’s-that’s, sort of, a remarkable coincidence, I suppose, that this is a gentleman who she had a brief relationship with many, many years ago in the Northern Territory, and I think there were some reference to Mr C in-in in Queensland, who turns up- in (omitted) briefly and then disappears, it would seem extraordinary, that if that is the case, then the hypothesis that this was a particular delusional state at the time, or-you know, a recurrence, would-would need to be challenged.
This proposition was put to Dr D, despite the mother’s evidence that Mr C was not in the (omitted) area.
ix)During periods when the mother hasn’t displayed any signs of mental instability, she has functioned fine.
x)It is during the times when she has not functioned well, that there may be concerns about the risk to the children being exposed to their mother’s behaviours and beliefs. The difficulty for children is they will not uncommonly align with the parental belief and adopt the same delusion.
xi)In response to the proposition that the mother would be more likely to be well in Melbourne in (omitted), Dr D said there was a possibility, but he didn’t think there was any degree of certainty that would be the case.
xii)In response to the comments of Mr T at paragraph 34 of the family report, when X relates her involvement in her mother’s delusions, for example being requested to take photographs of vehicles and her lack of concern of the strange and unusual occurrences in her home, Dr D states as follows:
There’s more evidence here that this is an example of a – of some level of a folie à deux, that X has – has just aligned and adopted the same sort of explanation that there is intruders and this is the reasoning behind it all. And I – I think the important thing to – to recognise is that Ms Buckingham – at least when I met with her and it seems to be the case now still is that she has not reflected on these things and – and has not acquired the insight that this is a reflection of a delusion state, that she still maintains that these things did occur, and I’m assuming she still believes that she hasn’t got a mental illness, albeit she’s now receiving medication from Dr F. I guess she’s taking that on a voluntary basis with – with some level of explanation and education and encouragement. But this – this is the anomaly I suppose that I found with Ms Buckingham is that when I asked her about her history – her psychiatric history – there had been intervals of contact with – with hospitals, mental health – health practitioners and then periods of – relatively brief periods it seems – of being prescribed medication that then just stopped and as – as if it – it was not warranted and because she didn’t have insight. And I – I – I think that’s one of the – the most critical things here is whether Ms Buckingham has got the capacity to adopt an appropriate level of insight because if she had insight then I daresay that the conversations she may have had with the kids would have been different. But at this point the kids themselves have got no insight into their mother, and they have got no insight into the fact that they’ve similarly adopted a delusional idea.
xiii)In the context of the mother’s mental health, firstly Dr D agreed that less exposure to their mothers world and what she believes is better for the children and that secondly, the children would be greatly assisted by an adolescent psychiatrist to educate them about their mother’s mental health and to develop protective mechanisms for themselves without being drawn into her world.

Equal shared parental responsibility

Section 61DA provides, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)     family violence.
(3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Equal or substantial and significant time with each parent

Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1)     … 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.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)     … if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(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.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)     For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)          the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)     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.
Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

She provided further examples of “unexplained events” specifically the incident involving X’s ripped book cover which is referred to in an email from the mother to the father in August 2015, which is exhibit F10. Mr T was previously unaware of this incident referred to in Exhibit F10.
The email reads as follows:
Dear Mr Simm, last week I purchased a book 1 and two of the four part insurgency series of books for X. She said she went to bed on Saturday night at your home and the book was in perfect order, as one would expect of a brand-new book. If you have ever noticed, X is very particular about keeping her books nice, yet when she woke up the back cover of the book was torn in two the rendered piece around 11 cm across and 7 cm down. This has never happened to one of her books and she is deeply troubled by it. She said she was terribly upset but when she complained to you, that you were unmoved and disinterested. Interestingly, today she found the torn part of the back cover in her school back. The piece is neatly torn around the writing, allowing it to be read.
The writing was: I have done things. I can’t take them back and they are part of who I am.
The mother’s and apparently also X’s interpretation of the ripped book cover is another “unexplained event”, rather than an obvious explanation. A possible explanation is that the book may have been damaged by X, or alternatively accidentally damaged and ripped when she pulled it out of the school bag.
In response to the propositions that:
a)The children’s belief in such unexplained events is contrary to their emotional well-being and development; and
b)Has striking similarities to the ripped T-shirt incident.
Mr T’s evidence was as follows:
X identifying sinister and unconscious motives to what are largely practical circumstances that would have a logical explanation is problematic.
Mr T conceded that at the time of the family report he was unaware of the extent of the mother’s inclusion of the children in her delusional behaviour and ideation.
At the time of preparation of his report, Dr C’s evidence was that she accepted as truthful the mother’s version of Mr C’s presence in (omitted). Mr T could not possibly have been aware that Dr F would later make concessions about the veracity of the mother’s statements.
Prior to being cross-examined, Dr F did not consider that the Mr C story was delusional because the mother withheld information about the Mr C delusion for at least two years and Dr F believed that the mother was well during that time.
Dr F is now of the view that:
i)The mother continues to believe that Mr C was in (omitted) and was stalking her during that period;
ii)Contrary to her presentation to Dr F, during that time the mother was psychiatrically unwell.
The concessions made by Dr F as to the mother’s delusional behaviour between 2014 and 2016, give rise to significant concerns about the mothers mental health and involvement of the children in her delusions over a protracted period.
Additionally, Dr D’s evidence referred to at paragraph 183(xii) hereof, about X and her mother, being aligned in a folie a deux is of enormous concern.
He refers to Ms Buckingham’s lack of insight and the fact that as at the date of interview she still maintained that these events occurred. He refers to the mother’s lack of insight as to one of the most critical factors in terms her involvement of the children in her delusions. He concludes that the children themselves have no insight into their mother’s mental health and indeed are unaware of it, and have similarly adopted delusional ideas.
Dr D concluded in his evidence that:
i)less exposure to their mother’s world and what she believes would be beneficial for the children, and
ii)the children would be greatly assisted by an adolescent psychiatrist to;
a.educate them about their mother’s world, and
b.develop protective mechanisms to minimise the children being drawn into her world.
Whilst Dr D’s report was available to Mr T at the time of preparation of the family report, and I note this is referred to in the list of documents in the family report, Mr T did not have the benefit of Dr D’s later oral evidence.
Dr D’s evidence painted an even bleaker and more concerning picture of the children’s alignment and enmeshment in their mothers delusional world, then was apparent from his psychiatric assessment report.
Mr T conceded, in the context of whether a week about arrangement would be appropriate for the children, that, if I concluded that he had underestimated or been unaware of the impact of the mother’s mental health on the children, then a week about arrangement may be a good option.
At the time of writing family report, Mr T believed that the mother’s mental health was episodic and that there were periods of lucidity and good mental health. That may well have appeared to be the case. However, the evidence of both Dr F and Dr D was that the mother, despite her protestations to the contrary had been suffering from delusions, and was able to hide them from her treating psychiatrist, Dr F for a protracted period of time.
In my view, whether week about is a suitable arrangement is really a matter of balancing and prioritising the children’s mental health with the other relevant factors, such as primary attachment and alleged poor communication. In Mr T’s words, a move to a week about arrangement needs to be based on the hierarchy of risk of the children’s exposure to the mother’s mental health difficulties.
What is required for these children is that they maintain a substantial relationship with their father and that any exposure to being drawn into their mother’s delusions is minimised.
Counsel for the mother submitted that the mother has been able to care for the children appropriately whilst they have been in her primary care, despite her suffering from psychiatric problems, and that there has been no evidence that anything has occurred since March 2016 in terms of unexplained events or inclusion in delusional beliefs.
That submission does not address the children’s unequivocal acceptance of:
a)The “unexplained events” which have repeatedly occurred in their home; and
b)the concept of being followed by people, including (vehicles omitted) whilst on the highway
I discuss in some detail, earlier in this judgment, the children’s acceptance of the mother’s delusional beliefs.
Additionally, the evidence is that both children require psychiatric and/or counselling assistance, which is a very sad state of affairs for a nine and twelve year old. Any step, which will assist the children to attain robust and stable mental health, should be prioritised.
Having regard to the matters referred to herein and hearing the evidence of the parties, Mr T, Dr F and Dr D, I am of the view that it is absolutely necessary to take all steps to protect the children’s mental health and to minimise their exposure to their mother’s delusional beliefs.
I determine that equal time with each parent is in the children’s best interests and the only viable alternative, other than placing the children in the primary care of their father.
Having made that determination, I am now required to consider whether or not the children’s spending equal time with each of the parents is reasonably practicable.
Section 65DAA(5) sets out the matters which the court must have regard to when considering whether an order for equal time with each of the parents is reasonably practicable. Section 655DAA(5) is set out at paragraph 186 hereof.
I will address each of the considerations set out in s.65DAA(5).

Section 65 DAA(5) (a) How far apart the parents live from each other

If the mother is permitted to relocate the children to Melbourne, then equal time with each parent is clearly not reasonably practicable. (omitted) and Melbourne are approximately one and a half hours drive apart. That estimate does not allow for peak traffic.
The father lives in (omitted) and is a (occupation omitted) in the town. There was no suggestion that he would be able to relocate to Melbourne.
If the mother is not permitted to relocate the children to Melbourne, and remains in the (omitted) area, even if she moved to a nearby town, then equal time with each parent would be reasonably practicable.

Section 65DAA(5)(b) the parents current and future capacity to implement an arrangement for the children spending equal time with each of the parents

Again, if the mother is permitted to relocate the children to Melbourne, there is no capacity to implement an equal time arrangement.
If the mother is not permitted to relocate the children to Melbourne, in my view, both parents have current and future capacity to implement such an arrangement.
The children would remain at their current schools, with Y progressing to attend the same secondary school, as X, at the completion of her primary education.
A week about arrangement would be the preferable configuration of equal time, and such an arrangement would minimise the need for the parents to come into frequent contact with each other. The children are both of an age where change over at school on a weekly basis during term time, is achievable.

Section 65DAA(5)(b) the parents current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind

As previously referred to in this judgment, the mother considers the capacity of the parents to communicate as problematic. The father views the existing communication via email as satisfactory, although he is reluctant to engage with the mother, other than at the most basic level.
If the mother is permitted to relocate the children to Melbourne, then the issue of communication with the father becomes more of a concern. If the mother is unable to communicate readily with the father, and the children’s time with their father is reduced, I am concerned that this may undermine and ameliorate the relationship between the children and their father. I do not see any realistic prospect of improvement in communication in the future.
If on the other hand, if the children are not permitted to relocate to Melbourne, the existing communication via email would be satisfactory. The father would have an ongoing and active role in the children’s lives, both during school and weekend times and would be aware of the children’s commitments and schooling requirements.

Section 65DAA(d) impact that an arrangement of that kind would have on the child

The mother submits that the problematic nature of the relationship between X and her father would not be conducive to an equal time arrangement. It is her view that X is reluctant to spend time with her father in accordance with the existing arrangements, and there is a possibility that X would not comply with a week about arrangement.
That submission is premised on acceptance of the mother’s evidence as to the nature of the relationship between X and her father. I do not accept the mother’s evidence of the relationship between X and her father. Where her evidence differs from the father, I prefer and accept the father’s evidence. The father’s evidence accords with Mr T’s and is referred to extensively at paragraphs 43 – 51 hereof, and 73 – 86 hereof.
There is no evidence or suggestion that Y would be resistant to such an arrangement.
In terms of the day-to-day impact on the children, a week about arrangement would provide consistency and stability to the children. They would continue with their current schools and extracurricular activities, and the existing social groups and networks would be maintained.
The most significant impact of the arrangement would be to hopefully strengthen the children’s relationship with their father and to minimise their exposure to their mother’s delusions and psychiatric problems.
This would provide a counterbalance and safety net to being involved in their mother’s delusional world, and consolidate the relationship with their father. That will be of utmost importance in the event their mother’s mental health is compromised significantly in the future.

Considerations and Conclusion

An application by a parent to relocate requires the court to balance:
a)a parent’s right to move and live where they choose, to enable a parent to progress and pursue a new life and employment opportunities, with;
b)the impact any such move would have on the children’s relationship with both parents.
Families such as this, where children have spent considerable periods of time in the care of each parent subsequent to separation, pose a particularly difficult task. Any decision will of necessity impact on the time the children are to spend with a parent with whom they do not live, and the nature of the relationship between the children and the non-resident parent.
Although she is not required to provide reasons for the proposed relocation, the mother’s evidence and Final Written Submissions refer to four reasons why she seeks to relocate with the children to Melbourne. These are as follows:
i)She has struggled to find suitable employment and believes the Melbourne metropolitan area to have far greater opportunities in that regard;
ii)She finds living in (omitted) intolerably stressful, in large part due to the presence of the father;
iii)She believes that a “fresh start “may provide an opportunity to improve the children’s relationship with the father, particularly in relation to X;
iv)Notwithstanding that (omitted) School is not an unsuitable school, she believes (omitted) School to be ideally suited to X.
I will address the evidence of each of the matters referred to in the preceding paragraph.

Mother’s employment opportunities

The mother is currently employed as a part time (occupation omitted). She works two days per week.
I accept that the mother is more likely to be able to obtain full-time employment in her preferred occupation if she lived in the Melbourne metropolitan area.
However there are two factors, which are relevant to this issue.
Firstly, the mother’s capacity to work on a full-time basis. The evidence of Dr F is that the mother is currently only capable of part-time employment. This may change in the future if the mother’s mental health stabilises and stressors to which she is subjected are minimalised. What is not known, is whether a relocation to Melbourne, attempts to find full-time employment, settle the children in two new schools, and social networks will prove stressful for the mother. Dr F’s evidence is that the mother has good organisational skills and may well be able to cope with such stress. However, she is unable to give that evidence with any certainty.
Secondly, the mother has not made any meaningful enquiries as to whether she would be able to find any suitable employment. The only step she had taken so far were very preliminary enquiries about a job she had found on a website. She was unaware of the proposed location, attendance requirements and remuneration for the position.

Mother’s stress of living in the (omitted) area

The mother’s evidence was that she finds living in a small country town where she frequently runs into the father, and where he holds a respected position as a (occupation omitted), to be particularly stressful and confronting.
Despite this alleged stress, according to the mother she has remained well and has not suffered paranoid delusions to any significant extent, post separation. This unfortunately was contradicted by Dr F by the concessions made by her during cross-examination.
I accept that the mother might find it difficult dealing with the father in a small rural town. However, prior to her final Written Submissions, she did not appear to have even contemplated that moving to one of the adjoining towns such as (omitted) or (omitted) could possibly alleviate this stress.
In her final written submissions, the mother refers to a number of reasons why she would not want to live in adjoining towns, one of which is to do with her estranged sister, whom she wishes to avoid. I accept this may be problematic for the mother.
Additionally, the mother has a history of prolonged dispute with a neighbour in (omitted), culminating in that neighbour seeking an intervention order against the mother. In the event this dissatisfaction with a neighbour occurred again, then the mother may find herself, subject to another set of stressors in the new location.

Opportunity to improve the children’s relationship with their father

The mother’s perception of the children’s relationship with their father is entirely different to the father’s perception of his relationship with the children. This is referred to at length in this judgment.
Additionally, the evidence of Mr T concurs with the father’s view of the nature of his relationship with the children.
There was no evidence from any professional that a reduction in the father’s time would result in an improvement of the children’s relationship with their father.
To the contrary, Mr T’s evidence was that the children would need to have a solid relationship with their father and that he should be significantly involved in their lives. This was particularly so if the father was required to assume primary care of the children, in the event the mother’s mental health difficulties precluded her from caring for the children.

(omitted) School is a better educational fit for X

The mother’s evidence is that (omitted) School is a better educational fit for X, than her current school, (omitted) School.
The mother arranged for X to sit scholarship and entry exams at a number of schools in Melbourne which cater for gifted children. These schools included a number of (omitted) and religious schools, despite X’s professed atheism, as well as state secondary colleges. There were about eight or so schools to which the mother applied on behalf of X. The only school to offer a scholarship was (omitted) School, which offered a half scholarship to X.
In 2016, whilst in grade 6, the mother arranged for X to attend an orientation day and other events at (omitted) School, and X’s knowledge of the school, as expressed to Mr T was her experience at these events. There is no objective evidence that (omitted) School would offer superior educational opportunities for X or that she would enjoy (omitted) School better than (omitted) School.
The agreed evidence is that X is progressing well and enjoying (omitted) School. I see no reason to disrupt X’s current schooling and social network. There is simply no substantive objective evidence that X would be happier at (omitted) School.
In his final written submissions, in opposition to the proposed relocation , the father asserts as follows:
i)The impetus behind the mothers application is X’s schooling and that is confirmed by the mother’s comments to Mr T and Dr D;
ii)The impact of the proposed move on Y has not been adequately considered by the mother;
iii)The concentration on X’s attendance at (omitted) School has precluded consideration of the multiplicity of other factors relevant to the welfare of the children;
iv)The evidence of both parties is that (omitted) School is suitable for X and that she is happy there and that Y is also settled in her school;
v)The mother has failed to address the practicalities of a relocation, including her proposal that X may have to attend a primary school after-care facility, depending upon the location of any employment the mother may obtain in the future;
vi)The mother’s economic plan for the success of the relocation is flawed and ill considered.
In relation to the issues raised by the father in his Final Written Submissions, I agree with those submissions.
The proposed relocation will cause significant change for both children in terms of both schooling and environment from a country town to the city. They will not have the same network of friends and their father will not be in such close proximity. There is no evidence of any social or in network in Melbourne for either the mother or the children.

There was scant evidence of the proposed practical arrangements for both children to attend different schools, and how the mother would manage before and after school drop-off. The mother suggested that X could potentially attend an after school care facility at (omitted) School which caters for primary school children. Given the comments of X about being treated as a “stupid kid”, it is highly unlikely that X would acquiesce to attending a primary school after-care facility.
Additionally, there was no proposal about Y’s future secondary school enrolment. There was no suggestion that Y could attend (omitted) School with her sister. Her only evidence was that Y would also sit scholarship exams. X, who is considered particularly academically gifted by her mother, has managed to obtain a half scholarship at (omitted) School. It would seem unlikely that Y, who is not intellectually gifted, would be likely to obtain a scholarship at (omitted) or any other school.
The mother’s plan for relocation does not have a sound economic basis. Her evidence was that she had approximately $100,000 in the bank and only a part-time job. She has proposed to pay half of the remainder of the (omitted) fees of approximately $5000 per annum, for the duration of X’s school.
She has no certainty of obtaining a full-time job, or to give any evidence of the hours of employment, location or remuneration, she would be likely to receive. Her plans were vague and overly ambitious.
The decision in a relocation case is to be determined by what is in the best interests of the children. As previously referred to in this judgment, there is no difference between relocation and other parenting cases.
In the family report and in his oral evidence, Mr T expressed the view that the best interests of X and Y would be met by the children remaining in (omitted) and for the father to have significant and direct involvement in the children’s lives.
At paragraph 51 of the family report Mr T states as follows:
The current arrangements provide for a substantial relationship between Mr Simm and the children and this acts as a safety net in the context of Ms Buckingham’s mental health difficulties. Ms Buckingham’s proposal to relocate and to have sole responsibility in the area of the children’s education and health significantly reduces Mr Simm’s direct involvement in the children’s lives. The proposal undervalues Mr Simm’s parenting contribution and the meaning of their relationship for the children and, in this context, Ms Buckingham’s proposal to relocate to Melbourne with the children is contra indicated and not recommended to the court.
Having considered all of the evidence referred to in this judgment, I am of the view, particularly when considering the impact of the mother’s mental health on the children and their enmeshment in her delusions, that their best interests are served by the children remaining in (omitted).

Overseas travel

The mother seeks orders that both parents do all acts and things to enable the children to have current Australian passports, and that each party be permitted to travel overseas with the children.
In particular, the mother seeks to attend a wedding in (country omitted) and to travel overseas with the children from (omitted) 2017 to (omitted) 2018. The children have been requested to be bridesmaids at a friend’s wedding which is scheduled to take place in (country omitted).
The father opposes the children travelling internationally with their mother as he considers that the mother may be a flight risk and that the children would be at risk in her care in the event she were to suffer delusions and or have mental difficulties whilst overseas.
There was a paucity of evidence by both parties in relation to the children’s International travel.
In relation to flight risk, the mother was born in Australia and has lived here all her life. However, while she has some relationship with a sibling, she is estranged from her sister, Ms P, who was a witness for the father. There was very little evidence about her relationship with her family, and whether those ties would be sufficiently strong to prevent her from attempting to leave the country permanently. There was no evidence about any other strong personal connections of the mother in Victoria, or in the Australia.
There was no evidence that the mother owned any substantial property in Victoria, rather her major asset was funds in a bank account, which of course does not provide any tie to Australia.
There was considerable evidence about the mother’s perception and belief that the father is controlling and coercive and her desire not to live in close proximity to him. Whether that would be sufficient motivation for the mother to seek to remove the children permanently from Australia is unclear.
There was also considerable evidence about the mother’s mental health and her delusions and the enmeshment of and acceptance by the children of her delusional beliefs. This is referred to by both Mr T and Dr D. Additionally, the mother’s treating psychiatrist, Dr F conceded that if a finding is made that the children have been involved in the mother’s delusional beliefs, then this poses a risk to the children’s mental health.
The risk identified by the father of the mother’s inability to act rationally if she were to have paranoid and delusional episodes shortly prior to or while she was overseas with the children is of considerable concern. Particularly in the context of Dr C’ s evidence that she had been unable to diagnose or recognise the mother’s delusional beliefs over an extended period from 2014 to 2016, and that the mother had withheld important information from her, which may have assisted in that diagnosis.
Dr F evidence makes it extremely difficult to have any confidence that a psychiatric assessment as to the mother’s condition at the time of contemplated travel would accurately reflect any delusional beliefs of the mother.
Whilst I know failure to permit the children to travel overseas at this time will likely result in further applications for international travel by the mother, on balance, I cannot be satisfied on the evidence before me that the children would be free of risk in the mothers care if she were permitted to travel overseas with them.
I will however, make orders that the parties do all acts and things to enable passports for the children to issue, at their joint expense and for those passports to be held by the registry of this court.
If the mother seeks to travel with the children at a later date, then it would be incumbent upon her to provide all of the appropriate information to the father, including a psychiatric report from her treating psychiatrist, and additionally an authority to enable the father to speak to that psychiatrist to satisfy any further queries he may have arising from the report.
The decision about international travel by the children with their mother would need to be made with the full knowledge of updated reports of the mother’s mental health at the time of travel and much more detailed information about her travel plans.

Departure Order

Both parties seek orders by consent that they will pay for the children’s private secondary school fees.
What is not agreed is how the parents will pay for books, school uniforms and incidentals.
The father proposes that each parent will pay for these items which are required in their respective households. The mother proposes that all such items will be paid equally by the parents.
There was almost no evidence about each proposal. I do however have concerns about how the children’s school books would be paid for, if I acceded to the father’s proposal. School books are used in both households and it would be almost impossible to decide apportionment of the costs of school books in accordance with the father’s proposal.
It would be preferable for the children, to make orders which would reduce the parental conflict, including who would be responsible for payment of which item, and for which household the items were required. The father’s proposal does not seem workable in that regard.
Accordingly I intend to make orders in accordance with the proposal of the mother.
There were no submissions about the applicable law which would enable me to make such an order.
However, in her Amended Initiating Application, the mother sought a departure order pursuant to the s.117 of the Child Support (Assessment) Act 1989, so that the father, in addition to periodic payments, pay half of the children’s school fees and other associated educational expenses (including uniforms, excursions and textbooks) for each of the children until the conclusion of their secondary education.
In his Response to Amended Initiating Application, the father sought that in addition to periodic payments, he pay one half of the children’s school fees until the conclusion of secondary education. However, his counsel submitted during the opening of the trial that he would pay for ancillary expenses for items used in his household.
I am satisfied in the special circumstances of the case as follows:
i)That a ground for departure as set out in s.117(2) exists; and
ii)It is just and equitable and otherwise proper that a departure order as proposed be made.
I intend to make the appropriate orders.

I certify that the preceding three hundred and forty nine (349) paragraphs are a true copy of the reasons for judgment of Judge Williams

Date: 24 May 2017

[2017] FCCA 1077

24 May 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction