Calhoun and Fortescue
[2008] FMCAfam 793
•14 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CALHOUN & FORTESCUE | [2008] FMCAfam 793 |
| FAMILY LAW – Parenting – relevance of mother’s psychiatric and psychological health – where not in dispute that children should live with father and spend time with mother – where children spending time with mother on a wholly unsupervised basis comprises an unacceptable risk – whether mother’s time with children should be monitored (by family members and mother’s support network) or made subject to requirement that an appropriate person be in substantial attendance. |
| Family Law Act 1975 (Cth) |
| Calhoun & Fortescue [2006] FMCAfam 511 Goode (2006) FLC 93-286 Hungerford & Tank (2007) FamCA 637 M & S (2006) FamCA 1408 Martinovich (2005) FMCAfam710 McLeay (1996) FLC 92-667 Mills & Watson (2008) FMCAfam 2 Taylor & Barker (2007) FamCA 1246 |
| Applicant: | MS CALHOUN |
| Respondent: | MR FORTESCUE |
| File Number: | MLM 7875 of 2006 |
| Judgment of: | Walters FM |
| Hearing dates: | 7 – 9 November 2007 |
| Date of Last Submission: | 9 November 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 14 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tulloch |
| Solicitors for the Applicant: | Cahill & Rowe Family Law |
| Counsel for the Respondent: | Ms Ben-Simon |
| Solicitors for the Respondent: | Whyte Just & Moore |
| Counsel for the Independent Children’s Lawyer: | Mr Whitchurch |
| Solicitors for the Independent Children’s Lawyer: | Samantha Ward Pty |
ORDERS
IT IS ORDERED THAT:
All previous orders be discharged.
The mother and the father have equal shared parental responsibility for the children [X] born in 1997 and [Y] born in 2004.
Subject to paragraphs 4, 5, 6 & 7 below, the children live with each of the parties as follows:
(a)with the mother:
(i)in each alternate week from after school on Wednesday until 5.00 p.m. Sunday;
(ii)for no less than 10 days in the Christmas holidays in each year at times to be agreed between the parties and failing agreement as follows:
(A)
from 10 a.m. on 24 December 2007 to 5 p.m. on
3 January 2009and in each alternate year thereafter; and
(B)
from 10 a.m. on 27 December 2008 to 5 p.m. on
6 January 2009and in each alternate year thereafter;
(iii)for no less than 7 days in the June/July school holidays in each year as agreed between the parties and failing agreement from 10 a.m. on the first Saturday to 10 a.m. on the second Saturday;
(iv)from 10 a.m. to 5 p.m. on Mother’s Day in each year;
(v)the mother’s time with the children pursuant to paragraph 3(a)(i) above be suspended from:
(A)the conclusion of school at the end of term 4 in 2007 until 15 January 2008 and in each year thereafter;
(B)for the whole of the June/July school holidays in each year; and
(C)from 10 a.m. to 5 p.m. on Father’s Day each year;
(vi)for no less than 5 hours on Easter Sunday in each year at times to be agreed between the parties and failing agreement from 12 noon to 5 p.m. on Easter Sunday (in the event that Easter Sunday falls during the mother’s time with the children, such time shall be suspended from 12 noon to Easter Sunday);
(vii)for no less than 3 hours on each of the children’s birthdays and the mother’s birthday at times to be agreed between the parties and failing agreement from 3.30 p.m. to 6.30 p.m.; and
(viii)for such further or other periods as may be agreed between the parties, and
(b)with the father at all other times.
Until 9 November 2008 the periods that the children live with the mother pursuant to paragraph 3 above shall be subject to an appropriate person being in substantial attendance and in the event that an appropriate person is not able to be in substantial attendance, the said period shall be reduced to coincide with the time that an approved person is able to be in substantial attendance.
From 9 November 2008:
(a)for each period that the children live with the mother pursuant to paragraph 3(a)(i) above:
(i)the period from Wednesday after school until 5 p.m. Friday shall be monitored by an appropriate person; and
(ii)thereafter the period from 5 p.m. Friday until 5 p.m. Sunday shall be subject to an appropriate person being in substantial attendance and in the event that an appropriate person is not able to be in substantial attendance, the said period shall be reduced to coincide with the time that an approved person is able to be in substantial attendance;
(b)on each day that the children live with the mother pursuant to paragraph 3(a)(iv), (vi) and (vii) above, the said time shall be monitored by an appropriate person;
(c)on each day that the children live with the mother pursuant to paragraph 3(a)(ii) and (iii) above, an appropriate person shall be in substantial attendance and in the event that an appropriate person is not able to be in substantial attendance, the said period shall be reduced to coincide with the time that an approved person is able to be in substantial attendance.
The mother do telephone the father, by no later than 5 p.m. on the Monday prior to the commencement of each of the children’s periods living with the mother pursuant to paragraph 3 above, to notify him as to the appropriate person or persons who is/are to be monitoring her or to be in substantial attendance for the forthcoming period of time.
For the purposes of these orders:
(a)the following shall be an “appropriate person”:
(i)Ms M;
(ii)Ms P;
(iii)Mr P;
(iv)Mr R;
(v)Ms E;
(vi)Ms H;
(vii)Ms W;
(viii)Dr V or his nominee:
(ix)Ms S or her nominee;
(x)a qualified person from the Active Care Attendant Care Agency to be nominated by Ms J (or any subsequent director of the said agency);
(xi)Ms H or any other appropriately qualified social worker from the Salvation Army, [omitted] Mental Health Services; or
(xii)any other person agreed between the mother and the father; and
(b)a requirement that the time that the children live with the mother shall be “monitored” by an appropriate person shall mean that on the relevant day :
(i)
an appropriate person shall spend face to face time with the mother for no less than half an hour between the hours of
8 am and 12 noon; and
(ii)the mother shall telephone an appropriate person once between the hours of 12 noon and 5 p.m. and once between the hours of 5 p.m. and 10 p.m.
The children communicate with each of the parties as follows:
(a)by telephone on each Tuesday and Thursday between 6.00 p.m. and 6.30 p.m. when the children are in the care of the father, the mother to make the said telephone call to the children and the father to ensure that the children are available to receive the said telephone call; and
(b)by telephone each Thursday and Saturday between 6.00 p.m. and 6.30 p.m. when the children are in the care of the mother, the father to make the said telephone call to the children and the mother to ensure that the children are available to receive the said telephone call.
If at any time during the periods when the children are to live with the mother pursuant to these orders the mother is unable to care for the children due to ill health, the children shall be returned to or remain in the father’s care until such time as the mother is able to care for the children and upon the mother giving the father reasonable notice the children shall be returned to her and the periods of time that the children are to live with her shall resume.
The parties do each forthwith provide the other with their current address, home telephone number and mobile telephone number and thereafter keep the other informed at all times of their new address and telephone numbers in the event that either of them changes any one or all of them.
Changeovers shall take place as agreed between the parties, and failing agreement at [X]’s school (when such changeovers coincide with the conclusion of a school day) and otherwise outside the [shop omitted]
The parties do each forthwith do all such acts and things and sign all such documents as may be required to enrol [X] in the “[omitted] Club” program at the [omitted] Centre and thereafter do all things necessary to ensure that she attends the said program until further order and further, in the event that there is any cost associated with [X] attending the said program, then such cost is to be shared equally by each of the parents.
The mother shall authorise her psychiatrist Dr V and psychiatric nurse Ms S or whoever may from time to time be providing mental health care to the mother to provide the father with regular updates as to the mother’s state of mental health.
Each party shall have liberty to apply at short notice in relation to these orders and if practicable such application shall be made to Federal Magistrate Walters.
All extant applications be otherwise dismissed.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001, the Court certifies that it was reasonable for the parties to employ an advocate.
AND THE COURT NOTES THAT:
In making these orders it is anticipated by the court that it may be appropriate to review the arrangements for the children on or after
26 June 2010 (being [X]’s 13th birthday) and, in the event that either parent wishes to make such a further application to the court regarding these orders, the fact of [X] having reached the age of 13 years shall be deemed to satisfy the threshold question of a change of circumstances (subject always to any other order or finding of the judicial officer before whom such an application is made).
Pursuant to ss.65DA(2) & 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Calhoun & Fortescue is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 7875 of 2006
| MS CALHOUN |
Applicant
And
| MR FORTESCUE |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children, [X] (who is 11) and [Y] (who is 8). The children currently live with the father, who is a capable and responsible caregiver for them (even if the mother thinks he is not). The mother has what her psychiatrist described as “a very complicated clinical disorder”, incorporating elements of bipolar disorder, post traumatic stress disorder and borderline personality disorder, and she cannot care for the children when she is clinically unwell. But when the mother is well, she too is a competent and responsible caregiver for the children.
The trial, like many other trials, had a life of its own. When it began, the dispute was broad and involved a number of aspects relating to the time that the mother should spend with the children – and, indeed, whether something approaching a “shared care” arrangement might be appropriate. By the trial’s closing stages, however, the only matters still in issue were whether the children should spend a block period of four or five nights per fortnight with the mother, and whether that time should be “monitored” by members of the mother’s family and various support workers, or whether such family members and support workers should be in substantial attendance[1].
[1] As to the meaning of “substantial attendace”, see my decision in Martinovich (2005) FMCAfam710
Much of the trial focused on the potentiality of harm to the children when in their mother’s care, and how the relevant risks should be managed. It was not suggested that the children are at risk when the mother is well, but the situation may be otherwise as the mother moves from being well to being clinically unwell, or with the onset of a psychotic episode. In December 2006, for example, the mother voluntarily admitted herself to a psychiatric unit, complaining of hearing voices that were commanding her to throw herself and the children in front of a train.
Unfortunately, there were times during the trial when it appeared that the mother and those supporting and advising her had lost sight of the fact that the best interests of the children (as opposed to the best interests of the mother) comprised the paramount consideration in the case. Thus, it was suggested that an arrangement such as that proposed by the father might somehow “infantilise” the mother, or be unfair to her, or even be “counter productive clinically” or “clinically adverse” from her point of view. It was also suggested that the mother’s “help-seeking” behaviour might somehow serve to minimise the risks to the children when they are in her care. In spite of those arguments, I formed the view that the risk (to the children) ─ which I considered to be inherent in the more relaxed supervisory arrangements proposed by the mother ─ was not acceptable, or even close to acceptable, at the time of trial.
The above summary comprises no more than a superficial introduction. I shall do my best to identify and resolve the various issues in dispute between the parties elsewhere in these Reasons.
Background and Overview
The father was born in 1967 and is now 41. The mother was born in 1968 and is now 39 (nearly 40). They commenced a relationship in June 1995, but they never lived together and they never married. The relationship ended in approximately October 2003.
There are two children of the relationship. [X] was born in 1997 and is now 11. [Y] was born in 2004, after the parties separated. He is now 8.
The mother has a constellation of medical and psychological problems. She appears to have atypical bipolar disorder, together with post traumatic stress disorder and borderline personality disorder. She also has albinism, and a significant visual deficit (as a result of her albinism). According to her psychiatrist, Dr V, she is "most effectively managed on a combination of mood stabilisers, atypical antipsychotics and tricyclic antidepressants”. In addition, over the last two years she has received fortnightly ECT.
The mother's psychiatric and other conditions have occasionally required her to receive treatment at times that she would otherwise have had the care of the children. On such occasions, the father has cared for the children.
According to the mother, there exists "a long history" of the father being abusive towards her and attempting to control her. The mother also asserts that she has been subjected to physical and emotional abuse by the father. I do not accept the mother's assertions in this regard, and it is clear that the evidence does not support them. At the end of the day, however, little turns on the matter because the mother's case, put at its highest, incorporates a proposal to the effect that the children spend the majority of their time in the father's care. Further, the mother's allegations were not pressed at trial, and all parties seemed to accept that they were more a product of the mother's (at times) disordered thinking than a true reflection of the father's actual behaviour. According to Dr V (who is the mother’s psychiatrist):
… (the father) has not always been given due credit for the degree of effort and stability he has provided for the children and his long-term commitment and obvious affection. Unfortunately, (the father) is somewhat restricted in his ability to manage interpersonal conflict and has a tendency to appear somewhat aggressive and irritable when in a situation that he finds difficult to cognitively manage. … (Regrettably), this interpersonal style very readily activates (the mother’s) PTSD triggers. Not surprisingly, she is then readily intimidated by him and becomes markedly and excessively anxious. … (She then) develops persecutory and distorted thinking as a consequence.
In late June 2005, the mother was admitted to the [omitted] acute psychiatric unit. On presentation, she threatened suicide and said that voices were telling her to kill the children.
The mother was released from the [omitted] about a week after her admission.
On 17 August 2005, consent orders were made in the State Magistrates Court in Geelong (“the Geelong Orders”). In broad terms, the Geelong Orders provided for the children to live with their parents in a shared care arrangement. Paragraph 10 of those orders is as follows:
If at any time the mother is unable to care for the children during her period or periods of residence due to ill-health, the child or children shall be returned to or remain in the father's care until such time as the mother notifies the father that she is able to care for the children, whereupon the child or children shall be returned to her and the periods of residence as provided for in these orders shall resume.
In April 2006, the mother notified the Department of Human Services ("DHS") that the father had allegedly hit [X]. As a consequence, the father was required to give an undertaking not to physically discipline the children while they were in his care. By August 2006, however, DHS had ceased its involvement with the family.
In September 2006, a series of events occurred which, in effect, gave rise to the current proceedings. Relevantly, the mother alleged (among other things) that the father had not properly supervised the children. As a result, she "disappeared" with the children. Both parties then commenced proceedings, which initially came on for hearing in the State Magistrates Court in Geelong. They were eventually transferred to this court, and I dealt with them on an interim basis on 18 September 2006.
The mother kept [X] away from school while she remained "in hiding".
On 18 September 2006, and after hearing argument on behalf of both parties, I ordered that the children be returned to their father, and that the Geelong Orders resume their effect as soon as practicable.[2] I also ordered that an independent children's lawyer ("ICL") be appointed, and made various directions designed to progress the matter towards trial.
[2] I provided ex tempore Reasons for the orders made on 18 September 2006 -- see Calhoun & Fortescue [2006] FMCAfam 511
Mr Tony Gee (report writer) saw the parties and conducted relevant interviews on 30 November and 11 December 2006.
Almost immediately after seeing Mr Gee, the mother voluntarily admitted herself to the [omitted]. On admission, she complained of hearing voices that were commanding her to throw herself and the children in front of a train. She also stated that she was eight years old, and seemed confused as to how it was possible that she had children.
The mother was released from the [omitted] on 18 December 2006.
The father was not advised of the mother's mental condition at the time of her admission to the [omitted] on 11 December 2006. In other words, none of the mother's treating medical practitioners and no one forming part of her support network saw fit to tell him about the serious nature of the mother's thought processes at that time. Those thought processes did not comprise some vague idea that she might end her life and the lives of the children. She had, in fact, described a relatively detailed plan which involved her going to a train station and proceeding to kill herself and the children in a specific manner.
The father only became aware of the comments made by the mother on 11 December 2006 after the relevant records were subpoenaed from the [omitted]. Those records revealed that the mother had also complained of voices telling her to kill the children during an admission in July 2005.
In early January 2007, the mother reported to a support worker that she was having thoughts that she was not a good mother and that everybody may be better off "if she was not here". The mother was also concerned that she would not be able to manage the children when they were in her care.
On 22 February 2007, I made further interim parenting orders (which orders speak for themselves). In the light of the events that had occurred, and on the basis of the evidence then before me, I was concerned about the mother's mental health. I made orders inviting DHS to intervene in the proceedings, and requiring the mother to undergo a psychiatric assessment.
On 26 March 2007, the mother filed an amended application seeking, in very broad terms, that the parties have equal shared parental responsibility for the children, and that the children live with each parent on a week about basis (subject to arrangements for holidays and special days).
On 9 November 2007 I made the final orders that are set out elsewhere in these reasons. In broad terms, I ordered that the parties have equal shared parental responsibility for [X] and [Y], and that the children live principally with the father. I also ordered that, for a period of one year, the whole of the children's time with the mother must be subject to an appropriate person being in substantial attendance. Thereafter, the requirement for an appropriate person to be in substantial attendance (which I shall simply call “substantial attendance”) is to be relaxed for that part of the time that the children are to spend with the mother which does not fall on a weekend. Relevantly, I ordered that, with effect from 9 November 2008, the mother's time with the children from Wednesday after school until 5 p.m. Friday is to be monitored by an appropriate person (who need no longer be in substantial attendance). The meaning of "monitored" is defined in the orders, which also set out a list of people who can be regarded as an "appropriate person".
Concessions
At the commencement of the trial, I was informed that all parties consented to an order for equal shared parental responsibility.
The formal arrangements for the care of the children were not in issue. Nor was it in dispute that the children were progressing satisfactorily in the broadest sense (including educationally), and that both parties were able to provide adequate housing for them.
By the end of the trial, it was conceded that the children should live principally with the father, and that the mother’s time with the children should not be on a wholly unsupervised (or unmonitored) basis.
In other words, it was eventually conceded that there is an unacceptable risk to the children if the mother’s time with them were not to be supervised or monitored to some extent.
The Parties' Competing Proposals
It is fair to say that the parties' proposals altered during the course of the trial. It was agreed, however, that the parties should retain equal shared parental responsibility for the children.
At all times leading up to closing addresses, the mother's preferred option was (in general terms) that the children live with her and with the father on a week about basis, and that the time the children spend with her be unsupervised. This option was described as "Plan A".
The mother also put forward other options, described as "Plan B" and "Plan C". Plan B was similar to Plan A, save that the mother was to be "monitored" on a regular basis while the children were with her.
As initially proposed, the monitoring was to be done by the mother's mother or sister (who both live in New South Wales), either of whom was to telephone the mother twice each day to check the state of her mental health. Plan C involved the children spending less time with the mother on a fortnightly basis, and someone from the mother's family being in substantial attendance at all relevant times. Plan C also allowed for the children to spend school holiday periods with the mother (again, on the basis that an appropriate person be in substantial attendance at all times).
Towards the end of the trial (during counsel for the mother’s questioning of Mr Gee), I expressed my concern that, in spite of all the evidence then before the court, Plan A still remained the mother's preferred option. By that stage, it was perfectly clear to any reasonable person that Plan A could not possibly be found to be in the children's best interests. It seemed to me that the mother's willingness to press Plan A in the face of overwhelming evidence to the effect that such an arrangement would pose an unacceptable risk from the children's point of view could reflect a serious lack of insight on the mother's part. Unfortunately, Ms Tulloch (for the mother) was unable to satisfactorily explain why she was suggesting to Mr Gee that Plan A might still be appropriate, and eventually implied that it fell within the category of what might be regarded as “an ambit claim” on the mother's part.
The mother eventually abandoned Plan A as an option, and it is to her credit that she did so. The fact of the matter is, however, that a very large proportion of the trial involved repeated, but unnecessary and unhelpful, exploration (with various witnesses) of options or possibilities for care arrangements for the children which had, when all is said and done, no real benefit for the children ─ and were simply being presented because it was perceived that they might, in some way, be fairer for the mother or more palatable from her point of view.
I have no doubt that the mother, and most of those supporting her case , had lost sight of the fact that the children's best interests (and not the mother's best interests) comprised the paramount consideration for the court.
In his closing address, Mr Whitchurch (for the ICL) submitted that the children should live (principally) with the father and spend four nights (Wednesday after school to Sunday at 5 p.m.) each fortnight with the mother. He also submitted that the mother should have longer periods with the children during school holidays In broad terms, the ICL's preference was for an arrangement more in line with Plan B than Plan C. Mr Whitchurch argued as follows:
a)The mother is "low-risk" insofar as her compliance with medication and her treatment regime is concerned.
b)The degree of risk to the children is further lessened as a consequence of the mother's agreement (expressed somewhat reluctantly during the trial) to allow her psychiatrist to discuss matters with the father, and because she is prepared to waive her right to privacy as it relates to the supply of information about her psychiatric condition. As a result of the mother's openness in this regard, the father can be "kept in the loop", as it were.
c)On the other hand, there remains the possibility of an episode occurring while the children are in the mother's care. If it does, then the children may be at risk as a result of the mother's disordered thought processes.
d)Account needs to be taken of the fact that the mother has hospitalised herself in the past (when the children have not been in her care), and that she has not advised the father of such hospitalisation.
e)In all the circumstances, a monitoring process is appropriate (which process should be similar to that in envisaged in paragraph 7 of the orders made on 23 August 2007), but it is not necessary for an appropriate person to be in substantial attendance whenever the children are with the mother.
To the extent that the amount of time that the children are to spend with the mother was in issue, the ICL submitted that there was little to choose between an arrangement whereby the children spend four nights per fortnight with the mother and an arrangement whereby they spend five nights per fortnight with her.
By the time Mr Whitchurch had completed his closing address, the mother's case had changed in that she had abandoned her argument to the effect that Plan A should be adopted. The only significant point of difference between the mother's case and that of the ICL was the amount of time that the children should be spending with the mother on a fortnightly basis. The mother was seeking five consecutive nights per fortnight and the ICL was of the view that four nights were appropriate. The mother accepted the need for monitoring, but rejected the need for substantial attendance ─ save in one respect. The mother proposed that, during extended periods with the children (such as, for example, when the mother travels to New South Wales to be with her family) an appropriate person should be in substantial attendance.
Mr Whitchurch summarised the ICL’s case by submitting that "such risk as there is can be dealt with by limited monitoring as opposed to substantial attendance".
Ms Ben Simon (for the father) only learned that the mother had abandoned Plan A a short time before commencing her closing address. She then (correctly) identified the main issues as:
a)whether the mother's time with the children should be monitored or made the subject of substantial attendance; and
b)whether the children should spend four or five consecutive nights with the mother each fortnight.
The father’s proposal was for four consecutive nights per fortnight and substantial attendance.
Documents Relied Upon
The mother relied upon the following documents:
a)her outline of case document;
b)her amended application filed 26 March 2007;
c)her affidavits sworn 8 September 2006, 21 February 2007 and 17 May 2007;
d)affidavit of her mother (Ms M) sworn 25 May 2007;
e)affidavit of her sister, Ms P, sworn 18 September 2006;
f)affidavit of Dr C sworn 26 April 2007;
g)affidavit of Ms S sworn 21 February 2007;
h)affidavit of Ms K sworn 6 August 2007; and
i)affidavit of Dr V sworn 26 April 2007.
The father relied on the following documents:
a)his amended outline of case document;
b)his amended response filed 28 May 2007;
c)notice of child abuse or risk of child abuse filed 21 February 2007; and
d)his affidavits sworn 11 September 2006, 14 September 2006, 20 February 2007, 27 May 2007 and 24 July 2007.
The ICL relied on the reports of Mr Tony Gee dated 19 December 2006 and 8 June 2007, and an outline of case document.
The Law[3]
[3] This generic summary of the law is extracted from my decision in the matter of Mills & Watson (2008) FMCAfam 2
Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Part VII of the FLA. Much of Part VII reflects comprehensive amendments to the pre-existing law, which amendments came into effect on 1 July 2006.
The Full Court carefully analysed the structure and effect of a significant portion of Part VII in Goode (2006) FLC 93-286. It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to section 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long-term issues in relation to the child”[4]. Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long-term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long-term issue in relation to a child ─ although such a decision could involve a major long-term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent).[5]
[4] See section 64B(3)
[5] See the definition of "major long-term issues" in section 4(1)
If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long-term issue regarding a child, then the relevant decision must be made jointly. Further, an order for shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long-term issue, and to make a genuine effort to come to a joint decision.[6] Such consultation is not required in relation to issues that are not major long-term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent.[7]
[6] See section 65DAC; see also Pender & Haywood [2007] FamCA 1526, at paragraph 56
[7] See section 65DAE
As has long been the case, the child’s best interests remain the paramount consideration in the making of parenting orders. That principle is set out in section 60CA:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The objects of Part VII, and the principles underlying it, are set out in section 60B. They are important.
The objects of Part VII are:[8]
[8] See section 60B(1)
… to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
The principles underlying these objects are:[9]
[9] See section 60B(2)
… that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Aboriginal or Torres Strait Islander children not only have a right to enjoy their culture, but they also have the right to:
a)“maintain a connection” with and “develop a positive appreciation” of it; and
b)be provided with “the support, opportunity and encouragement necessary to explore the full extent of that culture” (consistent with the child's age and developmental level, and the child's views).[10]
[10] See section 60B(3)
Given that all the expressed objects of Part VII are directed towards ensuring that a child’s best interests are met, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in section 60CC, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests.[11] The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
[11] If the court is considering whether to make an order with the consent of all parties, it is not required to have regard to all or any of the listed factors (although it may do so if it wishes) ─ see section 60CC(5)
The primary considerations are set out in section 60CC(2). They are:
a)the benefit to the child of having a meaningful relationship with both of the his or her 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.
The additional considerations are set out in section 60CC(3). They include:[12]
[12] This list is not intended to be comprehensive. It is simply a summary of the factors in section 60CC(3). The actual factors set out in section 60CC(3) ─ or, more accurately, those of them that are relevant ─ will be considered later in these Reasons.
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
d)the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
e)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
f)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
g)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
h)in the case of an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her indigenous culture;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
j)any relevant family violence, or family violence order;
k)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"; and
l)any other fact or circumstance that the court considers relevant.
Section 60CC(4) elaborates upon two of the factors referred to above ─ namely, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child (and to the responsibilities of parenthood) demonstrated by each of the parents. It requires the court to focus upon each party’s "track record" as a parent. Particular regard must be had to events that have happened (and circumstances that have existed) since the parties separated.[13] One of the matters that the court is obliged to consider is the extent to which each parent has fulfilled, or failed to fulfil, his or her obligation to maintain the child.[14]
[13] See section 60CC(4A)
[14] See section 60CC(4)(c)
The Full Court in Goode summarised the above process as follows:[15]
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined comprises the factors in sections 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in section 60B provide the context in which the factors in section 60CC are to be examined, weighed and applied in the individual case.
[15] See paragraph 10
Notwithstanding the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper.[16] Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the court may make such parenting order as it thinks proper.[17]
[16] See, in a different context, McLeay (1996) FLC 92-667 at 82,901
[17] See section 65D(1)
When making a parenting order, the court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility.[18] Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
[18] See section 61DA
The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence.[19] In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.[20]
[19] See section 61DA(2) and the definition of "family violence" in section 4(1)
[20] See section 61DA(3); it is important to note, however, that the Full Court in Goode (at paragraph 78) held that the discretion in section 61DA(3) should not be exercised "in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult."
In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the court that that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility.[21]
[21] See section 61DA(4)
Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise[22]), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable[23] and in the child's best interests. If it is, then the court must consider whether or not it should make an order to that effect.[24] If the court comes to the conclusion that an order for equal time should not be made, then it must then go on to consider whether the child spending "substantial and significant time"[25] with each parent would be both reasonably practicable[26] and in the best interests of the child. If it is, then the court must consider whether or not it should make an order to that effect.[27]
[22] See, for example, Goode at paragraphs 46 and 47, and Pender & Haywood [2007] FamCA 1526 at paragraph 44
[23] How a court determines "reasonable practicality" is the subject of section 65DAA(5)
[24] See section 65DAA(1)
[25] "Substantial and significant time" is defined in section 65DAA(3)
[26] How a court determines "reasonable practicality" is the subject of section 65DAA(5)
[27] See section 65DAA(2); see also Goode at paragraphs 43 and 44
The sequence in which the court should consider the various provisions discussed above (and other relevant matters) is not clear from Part VII itself. In Taylor & Barker (2007) FamCA 1246, however, the Full Court said[28]:
… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that section 60CC(1) provides that in determining what is in the child's best interests, the court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests. (Emphasis added)
[28] See paragraph 62
The Full Court in Taylor & Barker added that failure to follow the above approach (which it clearly regards as "the logical approach") does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to "the matters which the legislation requires must be considered".[29]
[29] See paragraph 63
Having summarised the effect of the amendments to Part VII in paragraph 65 of its judgment in Goode, the Full Court then described the "legislative pathway" that "must be followed" in interim proceedings in paragraph 82. There seems to be no reason, however, why the same pathway ought not to be followed at trial, where final orders are sought.[30]
[30]The relevant steps (as modified for a final hearing) are as follows:
a)Identify the parties’ competing proposals.
b)Identify the issues in dispute in the proceedings.
c)Make relevant findings in relation to the facts.
d)Consider the relevant section 60CC factors and (if possible) make findings about them.
e)Decide whether the presumption in section 61DA (that equal shared parental responsibility is in a child's best interests) applies.
f)If the section 61DA presumption applies, then consider whether it has been rebutted (because its application would not be in the child's best interests).
g)If the section 61DA presumption applies, and has not been rebutted, then consider making an order that the child spend equal time with the parents ─ unless equal time would be either:
i)contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC;[31] or
[31] But see subparagraph (k) below
ii)impracticable.
h)If equal time is not in the child's best interests, or is impracticable, then consider making an order that the child spend substantial and significant time with the other parent – unless (in turn) substantial and significant time would also be either:
i)contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC;[32] or
ii)impracticable.
i)Bear in mind, however, that it is only necessary to consider whether it would be “reasonably practicable” for a child to spend equal time with each parent (or substantial and significant time, as the case may be) if a conclusion has already been reached to the effect that it would be in the child’s best interests to spend equal time with each parent (or substantial and significant time, as the case may be).[33]
j)If the section 61DA presumption has been rebutted or does not otherwise apply, or if it does apply but "neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child's best interests", then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are "at large and to be determined in accordance with the child's best interests" (or, in other words, as a result of consideration of the objects and principles in section 60B and the factors set out in section 60CC).[34]
k)The court is not relieved from having to consider equal time, or substantial and significant time, simply because neither party has sought orders to that effect ─ although the court would only make orders of this nature if it were to conclude that it would be in the best interests of the child to do so, and after affording procedural fairness to the parties (by informing them that equal time, or substantial and significant time, is being considered, and by giving them an adequate opportunity to lead evidence or make submissions in relation to the subject, including the issue of impracticability).
l)Throughout the entire process, the court must bear in mind that the child's best interests "remain the overriding consideration",[35] and that the child's best interests are to be “ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC”.[36]
[32] But see subparagraph (k) below
[33] See Taylor & Barker at paragraph 74
[34] See Goode at paragraph 65.8
[35] See Goode at paragraph 65.11
[36] See Goode at paragraph 65.9
Dr V’s report (8 April 2007)
Dr V is a well-qualified consultant psychiatrist, who has been the mother's consultant at [omitted] Health for approximately 5 years. His qualifications, experience and general expertise in the area of psychiatry were not in dispute.
In his report dated 8 April 2007, Dr V described the mother's mental health as follows:
(The mother) has a very complex clinical disorder. Her working psychiatric diagnosis has been that of bipolar disorder. There is a history that around the age of 18 she had a manic episode with psychiatric hospitalisation. Following the birth of [X] she had extensive psychiatric difficulties again, requiring repeated and prolonged psychiatric admissions with a variety of treatments, including ECT. Following the birth of [Y], there was a classic presentation of mania, which is not uncommon in bipolar disorder. Certainly at the time that she was manic after the delivery of [Y] there were symptoms of mood elevation, mood lability and low-grade psychotic symptoms. … In terms of the clinical diagnosis over the years … the predominant presentation has been that of major depression. Over the last five years she has had a number of significant episodes, some requiring admission and she has undergone a number of trials of medication. We have found (the mother) to be most effectively managed on a combination of mood stabilisers, atypical antipsychotics and tricyclic antidepressants. In addition, over the last two years she has received fortnightly ECT…
It has become increasingly apparent over the years, however, that her difficulties cannot be fully some subsumed under bipolar disorder and, if anything, that is the lesser part of her psychological problem and has been reasonably straightforward to manage. (The mother) has a very complicated childhood developmental history, suffering emotional and sexual abuse at the hands of a close family member. The clinical difficulties that we have mostly managed have been the sequelae. to this abuse and diagnostically are described as post traumatic stress disorder (PTSD) and borderline personality disorder…
With reference to PTSD, (the mother) demonstrates a constant high level of anxious arousal with startle response, physiological activation, scanning, multiple somatic symptoms and ongoing feelings of apprehension and fear that negative things will happen. Avoidance is principally manifested through blocking out of memories and refusing to talk and think about past abuse. In addition, she will avoid situations, people or conflicts that activate her anxious arousal. She does not describe nightmares or typical flashbacks, but I have always had a suspicion that this is due to avoidance in reporting rather than absence. Triggers that activate trauma memories lead to acute and intense physiological arousal and distress. The most problematic aspect of the PTSD however is the experience of dissociative states. In situations of interpersonal conflict or when she is overwhelmed with a stressor, (the mother) can rapidly fall into a dissociative episode. At that time, she takes on the persona of a young frightened child, interprets almost any stimulus as being of a threatening nature and finds it difficult to correctly appraise her surroundings from a realistic perspective. Interestingly, at these times her visual deficit becomes markedly exacerbated. It is principally during or surrounding these dissociative periods that she experiences non-psychotic hallucinations which are described by (the mother) as "voices". It is these voices that tell her to harm herself or cause harm to the children. Such non-psychotic hallucinations are not uncommon in patients with borderline personality. Although they are partly experienced as an alien voice, their nature, content and "in the head" experience identify them as being intense thought processes rather than psychotic phenomena.
With respect to the borderline personality disorder, (the mother) demonstrates a typical pattern of quite variable levels of independent and autonomous function. I have had conversations with (the mother) where she presents as remarkably calm, mature and insightful and can take full responsibility for the needs of herself and her children. This can vary quite dramatically however and at other times she presents as if she were a distressed and incompetent child. The nature of the environment can quite strongly influence the external behaviour. In a clinical session with carers, she can readily fall into a more regressed pattern whereas when she is in situations where she has to take charge and control, she can take on the more autonomous function. She demonstrates other features of borderline personality disorder such as rapid mood fluctuations, distress when she feels abandonment, dependency, black and white thinking and excessive feelings of either praise or anger towards those she perceives as being carers.
…
(The mother) certainly has quite severe manifestations of the above conditions and not surprisingly the clinical management has been long-term and complex. There does appear, however, to be a gradual improvement and stabilisation. (Emphasis added)
Generally speaking, Dr V felt that the mother now has a better capacity to understand and manage her symptoms and behaviours ─ except "… when she is dissociated or in a highly agitated state".
In relation to the mother's comments regarding harming the children, Dr V wrote that, if the mother had needed to be admitted to care, or supervised in some way, then that had been arranged. On the other hand, Dr V has sometimes felt that the risk "… was either containable or not of a level of significance that she should not have care or access to the children". He continued:
… It is well-known that patients with borderline personality disorder have chronic thoughts of self-harm and if there are children can include thoughts of harm to children. This is quite different from … a psychotic condition where delusions and hallucinations can cause the person to feel it is justified acting upon thoughts.
In Dr V’ opinion, the degree of risk (to the mother and to the children) of acting upon thoughts of self-harm or harm to others is less if there is "a close and supervised relationship with therapeutic staff", and if there is a well coordinated management plan.
Dealing with the relationship between the parties, Dr V wrote:
Unfortunately, the situation has been complicated by the fractious nature of the relationship between (the mother) and (the father). In my opinion, (the father) has not always been given due credit for the degree of effort and stability he has provided for the children and his long-term commitment and obvious affection. Unfortunately, (the father) is somewhat restricted in his ability to manage interpersonal conflict and has a tendency to appear somewhat aggressive and irritable when in a situation that he finds difficult to cognitively manage. This does not always put him in the best light, despite his underlying good intentions. More regrettably, this interpersonal style very readily activates the PTSD triggers of (the mother). Not surprisingly, she is then readily intimidated by him and becomes markedly and excessively anxious. Quite typically then for patients with PTSD and borderline personality disorder, she perceives herself to be aggressively intimated (sic) by (the father) and she develops persecute three and distorted thinking as a consequence. I have always suspected that he in turn reacts to this and it sets up a negatively reinforcing cycle.
Overall, Dr V confirmed that the mother finds "the task of parenting" very difficult (which is only to be expected, given the various problems that have been described). Because the mother has openly reported her fears that she may act upon thoughts of harming the children, however, Dr V’s view was that the risk of the mother actually acting upon such thoughts is diminished.
In relation to the events of 11 December 2006, Dr V wrote:
… (The mother) was very unwell and her experience of the non-psychotic hallucinations was so intense that her ability to discriminate between the love of her children and the thoughts of harming them was significantly impaired. Due to distorted thinking, she believed that if she died by committing suicide, it would be better to take the children with her as she believed that (the father) would not be able to take care of them. Certainly at that time it would have been inappropriate for her to have care of the children. There is however, no history of (the mother) acting on such thoughts. To have patients act on such thoughts in these circumstances is exceedingly rare. Such symptomatic presentations are fortunately obvious to clinicians, tend to be short-lived and are infrequent. When (the mother) is clinically settled she does not experience such thoughts. (Emphasis added)
Dr V emphasised the fact that those who support the mother are able to monitor her mental state because of her close and frequent contact with them. He and the other support persons seemed confident that the mother would make contact with them in the event of a crisis arising. Should such a crisis arise, she can be properly cared for – as an inpatient, if necessary. At the same time, Dr V clearly saw it as fortunate that the father is able to take over the management of the children at such times.
Dr V concluded his report as follows:
In summary … it is my clinical opinion that the risk of harm to the children due to the experience of thoughts of harming them during … periods of crisis is low. Ongoing treatment and support through our service remains essential.
Dr V’s oral evidence
Among other things, Dr V said as follows:
a)The mother is clinically stable at the moment.
b)He last saw the mother approximately one month ago. She was not clinically stable at that time. She was not well, was "very fragile" and was "having some of her illogical and distorted thinking".
c)Relevant to the issue of risk to the children is the fact that the mother "engages in help-seeking behaviour". Indeed, the mother is "almost too willing" to ask for help. Because the mother has a clinical structure around her, and a support network, the risk to the children is less than it might otherwise be.
d)The mother's proposal to the effect that her mother or her sister should contact her twice a day (or thereabouts) to monitor or assess her stability "does not make sense" from a clinical point of view. A long-distance assessment based on tone of voice, conveyed information and the like is "clinically substandard". Further, practical problems could arise if a family member were to conclude that there is a concern regarding the mother's stability (in that it may not be possible to mobilise her support network in time to avoid any potential harm). Dr V’s "main clinical objection", however, was that the proposal "infantilises the patient". Those working with the mother are endeavouring to encourage and assist her towards autonomy. They are trying to get her to take control of and responsibility for her anxiety and her various symptoms. To that extent, Plan B would be "counter productive clinically" from the mother's point of view.
e)The alternate proposal (to the effect that a support person be in substantial attendance when she has the children with her) is also problematical. It is illusory to think that such an arrangement could prevent all possible risks. But, once again, the main objection relates to infantilising the mother ─ who cannot be a functional and competent person if she must be watched and monitored. To that extent, Plan C would be "clinically adverse" from the mother's point of view. It may also not be in the children's best interests because "the more autonomous and capable (the mother) is, the better she is as mother, as a role model, as a communicator".
f)He is prepared to take on the role of determining what should be communicated to the father about the mother's psychiatric or psychological condition. He sees it as his responsibility to do so. He recognises, however, that practical difficulties (and, conceivably, serious practical difficulties) could arise in the event that he is not personally available at the time of a crisis or at some other relevant time.
g)The mother's clinical presentation can change quite rapidly. Generally speaking, though, the mother feels compelled to tell him (or other members of her support team) when she has unwanted thoughts. That compulsion stems from the fact that such thoughts cause the mother distress and anxiety, which she is keen to alleviate.
h)He is not sure whether the mother is ready to accept that the father is not "the bad guy". Generally speaking, when the mother has had the children with her and then found herself in a crisis situation, Dr V and his team have had to negotiate the transfer of the children to the father. The mother seems incapable of taking that step of her own accord.
i)At the end of the day, he cannot guarantee that nothing will ever go wrong if some form of unsupervised or unmonitored care arrangement is put in place.
When Dr V was referred to a comment made by the mother (during the course of her evidence) to the effect that she looks forward to death, he said that such thoughts are common with people who have borderline personality disorder.
I asked Dr V about the passage in his report where he wrote that the mother would not have been capable of caring for the children on or around 11 December 2006. He confirmed that the risk to the children of remaining in the mother's care at that stage would have been unacceptable.
In my opinion, Dr V could offer no adequate reassurance that the children would not be at significant risk if the mother's mental or psychological condition were to deteriorate rapidly or unexpectedly (as Dr V conceded that it could). He is well aware that the mother can move from a clinically stable condition to a clinically unstable condition in a very short period of time.
Dr V confirmed that his view, in essence, is that the mother is a person who has reasonably good insight into her problems and that, generally speaking, if she were to have a problem while the children are in her care, then she would be likely to seek assistance. Further, in his opinion, the mother would be likely to seek such assistance before her condition deteriorated to such an extent that she could become a serious risk to the children.
I have considerable discomfort with parts of Dr V’s evidence. Relevantly, I find that he is far more concerned about the mother and her psychiatric or psychological health than he is about the children and their best interests (notwithstanding that he endeavoured to suggest that his responsibility is to the community as much as it is to the mother). His reference to certain proposals "infantilising" the mother is a good example of his priorities. The fact of the matter is that, in these proceedings, the best interests of the children comprise the paramount consideration. If the only way that the children can be properly and effectively protected from the potential risks that are inherent in or from the wife's belief system as she moves from a clinically stable condition to a clinically unstable condition is to put in place some form of direct or indirect supervision of the mother, then that is what must occur. Whether the mother is “infantilised” in the process is simply not to the point.
To his credit, Dr V accepted that it is for the court (and not for him) to make a decision as to how best to promote the children's welfare.
He said that he and the other members of the mother's support team "live in the real world" and "will live with" any decision that the court may make, even if the decision is not "optimal from a clinical point of view".
Overall, I accept Ms Ben Simon's submissions regarding Dr V's evidence and the weight that should be attributed to it. Relevantly,
Ms Ben Simon submitted that it is important to put the mother's behaviour into context. For example, these proceedings commenced because the mother "disappeared" with the children in September 2006 and, in so doing, prevented them from having any contact with the father. In December 2006, she suffered a serious episode involving disordered thinking. That disordered thinking could return at any time. So could the mother's suicidal feelings, which are always at the back of her mind. Although the mother has an excellent support network, that network clearly exists for purposes other than monitoring and protecting the children. If, for whatever reason, relevant members of that network are unavailable, then the health care professionals to whom the mother may turn for assistance are unlikely to be aware of the family dynamics (or, indeed, the possible risks to the children).
Ms Ben Simon also submitted (and I accept) that the evidence reveals that the mother will almost certainly endeavour to "hold it together" (as it were) for as long as possible before seeking help ─ because she fears that if she does seek help, then the children may be placed in the father's care. The mother's actions in the past reveal that she and those who support her have not volunteered to the father the fact that the mother may have been encountering serious difficulties relating to her mental health, which difficulties clearly impacted on her ability to care for the children. The evidence reveals that those comprising the mother's support network have always done their best to be available for her; it does not reveal, however, that the network has placed the children’s best interests in the pre-eminent or paramount position that the law ascribes to them.
Approaching the matter from a different perspective, Ms Ben Simon also suggested that there is a risk that remote monitors (such as the mother's mother or sister) might overreact as a result of something that the mother may tell them. As a result, steps might be taken unnecessarily, resulting in the children being removed from the mother’s care without adequate justification. A substantial attendance arrangement, on the other hand, is not only likely to overcome the problems associated with a crisis being overlooked or minimised, but it is also likely to overcome the problems associated with a relatively minor incident being misinterpreted.
Dr C's report (18 April 2007)
Dr C’s qualifications, experience and general expertise in the area of psychiatry were not in dispute.
Dr C saw the mother on 11 April 2007, the day after she was discharged following a stay of one week in hospital.
In the process of discussing the mother's history, and referring to the hospitalisation that had ended on the previous day, Dr C wrote:
In the past she had been suicidal. She had taken overdoses, slashed her arm and burnt her wrists and hands. Although she was not suicidal at present, the thought was there. However, she did not intend to do it. It was more that she was looking forward to dying.
Dr C's opinion was relatively brief:
I do not think there can be any question about the fact that (the mother) suffers from bi-polar disorder (formerly known as manic depression). … At the time of my examination (the mother) was apparently suffering from a short lived manic episode, followed by a lapse into depression although she seemed well on the way to remission. I can appreciate that she might have been striving to put the best possible face on things in view of the circumstances (which in itself would suggest that she was able to make a realistic appraisal of the situation), but I can only say that to all intents and purposes her mood and behaviour during the interview appeared quite normal.
… I do not doubt that (the mother's) behaviour has at times been such as to cause her partner considerable concern and arouse his anxieties about the welfare of the children.
The crucial question appears to be where the children will be in danger of death or serious injury while they are in their mother's unsupervised care. I do not think one can discount the risk entirely, but I do not believe that it is so great that (the mother) should be denied access to the children while her nervous disorder is in remission, provided she remains under psychiatric care, keeps regular appointments and takes her medication.
Notwithstanding the final sentence quoted above, it was never suggested that the mother should be "denied access" to the children.
Dr C's oral evidence
Among other things, Dr C said as follows:
a)It is difficult to predict when a psychiatric (or psychotic) episode will occur. Such an episode can occur quickly.
b)There is a risk that the mother will harm the children during a psychotic episode, but it is not a "real" risk. There is a greater risk of the mother harming herself during such an episode.
c)Indeed, having the children in her care would be a contra-indicator to the mother harming herself. This is so because the mother is more likely to "hold it together" when the children are with her. By "holding it together", however, the looming episode cannot be prevented ─ it can only be delayed. The longer the children are with her, the more difficult it will be for the mother to hold off the onset of the episode.
d)While accepting that the mother might be able to recognise the onset of symptoms (and that she might be able to seek assistance in such a case), it is better if an independent person were to discharge that responsibility. It is desirable to have the mother's family members with her when she has the children because "everyone would feel more comfortable with that". On the other hand the mother might be made to feel that people do not trust her. In all the circumstances, however, the most appropriate course of action is for another person to be present.
In my opinion, Dr C's evidence clearly supported a conclusion to the effect that the form of monitoring proposed by the mother would be inferior (from the point of view of the children’s best interests) to an arrangement involving substantial attendance.
Ms S's report (21 February 2007)
Ms S is a community psychiatric nurse with the [omitted] Community Mental Health Team at [omitted] Health. She works "within a multidisciplinary team of clinicians and under the supervision of consultant psychiatrists". She is an experienced psychiatric nurse.
Ms S has case managed the mother for the last five years. She sees her every two weeks (and in between appointments if the mother initiates contact).
According to Ms S:
a)over the last five years, but in particular during the last 12 to 18 months, the mother has made "major gains in maintaining her good mental health";
b)the mother's "insight and understanding of her condition is now very good" and "her want and her ability to take on board strategies to manage stressful situations has vastly improved";
c)the mother's last admission was in December 2006, when she "openly communicated that she had intrusive and unwanted thoughts regarding harming herself and her children"; and
d)generally speaking, the mother has been "well and stable".
As might be expected, Ms S was generally supportive of the mother in her report.
Ms S's oral evidence
Again, and as might be expected, during her evidence Ms S endeavoured to be as supportive of the mother as possible. Regrettably, her therapeutic relationship with the mother affected her impartiality. She said, for example, that "ultimately, I am here for my client".
Ms S confirmed that, to her knowledge, the mother often thinks about suicide and that the mother "looks forward to dying".
Ms Ben Simon referred Ms S to the mother's admission to hospital in April 2007. She said that she could "not specifically remember" that admission. Nor could she remember a second admission subsequent to what she had described in her report as the mother's "last admission" in December 2006.
Ms S also said that ─
a)if the mother rings and says she is not well, then she (Ms S) would do an assessment over the phone;
b)if a problem arises as a result of the telephone assessment, then she will go over to see the mother;
c)if she is concerned by what the mother tells her, then "the trust factor goes out the window" and she will contact DHS; and
d)all health professionals have a duty of care to contact DHS if a client is voicing thoughts of harming children.
She then added:
It is not my job to assess the risk (to the children). My job is to convey the information (to DHS). My duty of care is to the client (namely, the mother).
In Ms S's opinion, the father does not need to know any more information than that the mother is unwell and is in hospital (and that he can therefore care for the children).
Ms S confirmed that stress can exacerbate the mother's psychiatric condition. She also confirmed that the care of both children for a full week could amount to a stressor from the mother's point of view. She emphasised, however, that the mother's capacity to manage herself and the stress associated with having the children is improving all the time.
In my opinion, Ms S felt a strong sense of loyalty to the mother. As a result, she sought to minimise the potential risks to the children while in the mother's care. To that extent, her evidence did not demonstrate balance, and I am not prepared to give her opinion a great deal of weight. Importantly, however, she conceded that she could not recall a single incident when the mother asked for the children to be removed from her while they were in her care. The decision to remove the children from the mother due to the onset of a psychiatric episode has always (or, at least, over the past five years) been made by Ms S.
Ms S's evidence, like that of Dr V, did nothing to persuade me that an arrangement involving monitoring should be preferred to one involving substantial attendance.
The Family Reports (19 December 2006 and 8 June 2007)
Mr Gee prepared two reports. The first report (dated 19 December 2006) is now of little relevance. The second (dated 8 June 2007) is of more assistance.
After dealing with each party's version of background events, and after recording his observations of the children with the parties, Mr Gee wrote:
32. From the writer's perspective, these matters are always difficult. There is little doubt about the children's attachment to both parents and there was a level of warmth and involvement evident, particularly with the mother. However, there is a reality about the mother's health and the fact that there appeared to be ongoing periods of hospitalisation which necessitate the father to take up full-time care at these times.
33. It would appear that the current time plan (reflecting the orders made in February 2007) has worked well, with particularly the father, but also the children, appearing more at ease. …
34. In terms of supervision, there are reports from the mother's mental health practitioners on which the court may rely. The writer cannot offer a risk assessment other than to add the observations (made in this report) and the fact the mother appears to have a very good understanding of the health, monitors it insightfully, and involves relevant professionals when needed. …
Mr Gee's oral evidence
Mr Gee was asked about the mother's proposal to the effect that the children spend a five night block with her each fortnight. He felt that such a period might cause undue stress to the mother and make it more difficult for her to cope ─ although he emphasised that he could not predict with certainty the impact of the block period upon the mother's health.
When pressed, he referred to "drawing a line in the sand", and said that a block period of five nights per fortnight seemed preferable to a period of four nights per fortnight (although he recognised that the court might form a different view).
Mr Gee acknowledged the problems associated with the monitoring arrangement proposed by the mother, referring to the fact that the mother may fail to "self report" if there is no one in substantial attendance. On the other hand, he recognised that the mother (and her mother) were meticulous in complying with the supervision arrangements put in place by the court, and felt that the risk of the mother not seeking assistance if she felt that she was heading towards an episode of psychiatric ill health was low.
Mr Gee described [X] as "a quite mature child", and said that nothing that he had seen or heard from her indicated that she felt a level of concern in the mother's household. He added that [X] feels "a level of protectiveness" towards the mother. When I asked him about the benefit of [X] attending an appropriate course for family members of people with mental illness, Mr Gee responded that such a course would be "a very positive thing" for [X].
In my opinion, Mr Gee's evidence did not add greatly to the material before the court. It certainly did little to assist the court to determine whether monitoring was preferable to substantial attendance. The orders that I made at the completion of the trial, however, reflect my acceptance of the view that it would be best for all concerned if [X] were to attend an appropriate course for children in her position. Further, my decision to "phase in" a monitoring arrangement after a period of substantial attendance reflects my acceptance of Mr Gee's evidence regarding [X]’s maturity.
Other evidence (including the evidence of the parties)
Given the relatively narrow ambit of the dispute at the conclusion of the trial, I do not propose to review in detail the parties' evidence, or that of the other witnesses. The mother, her mother and sister all endeavoured to persuade me that a monitoring arrangement is adequate and workable, and is unlikely to cause the children to be placed at risk in any way. All did their best to minimise or downplay the overall impact of the mother's mental health problems, and to emphasise that the mother has excellent insight into those problems and can be trusted to seek assistance if she starts to become unwell.
I have formed the view that the risk to the children in the event of a monitoring arrangement being adopted (as opposed to substantial attendance) is currently unacceptable. I accept, however, that the risk to the children is likely to become more “acceptable” as [X] grows older, and after she has completed an appropriate program designed for children with a parent or close family member who suffers from a mental illness.
Regrettably (from the mother's point of view), I have no confidence that the mother will willingly return the children to the father's care if she becomes unwell when they are with her. I have no doubt that she will do her best to cope with the symptoms associated with any approaching episode, and that she will strive to "hold it together" until her period of time with the children has run its course. Given the statements made by the mother (admittedly, while she has been unwell) regarding her thoughts of harming the children, the margin of error is simply too narrow to justify the acceptance of a monitoring arrangement. With substantial attendance, however, the risks to the children are clearly (indeed, and in the circumstances of this case, unarguably) “acceptable”. With monitoring, those risks are unacceptable ─ however hurtful or disappointing that conclusion might appear to be to or for the mother and her family and support workers.
The mother presented as a calm, serious and intensely focused witness. I have no doubt that she believes that any form of monitoring or supervision (let alone substantial attendance) is neither fair (to her) nor necessary. But the nature of her psychiatric and psychological problems is such that, in my opinion, her belief in that regard is reflective of her impaired insight into the potentiality of harm to the children (and, of course, to herself) if she were to misjudge her capacity to cope with them during the period leading up to the onset of an episode or if she were to miscue her timing when deciding to seek help.
For his part, the father was a sensible and credible witness.
He accepted that his initial proposal (to the effect that the mother's time with the children should be strictly supervised) could properly be varied to one involving substantial attendance only. In my opinion, he displayed a good understanding of the mother's mental and psychological condition, and of the problems confronted by the children as a result of that condition. He also displayed a good understanding of some of the shortcomings associated with his own behaviour. For example, he recognised that it is clearly in the children’s best interests for the parties to communicate better than they have in the past, and that the previous communication problems were certainly not the fault of the mother alone.
The father's preference was for substantial attendance to continue until [X] reaches the age of 14 (at least). The orders that I have already made reflect the fact that I was not persuaded that the parties cannot move from monitoring to substantial attendance at an earlier stage.
Further discussion
Among other things, Ms Ben Simon submitted as follows:
a)The monitoring arrangement proposed by the mother and the ICL is inherently unsatisfactory. For example, if the monitor does not know the mother extremely well, then he or she may not be able to identify relevant changes in the mother’s mental health.
b)It is important to have regard to the circumstances in which the current proceedings began. Relevantly, the mother saw fit to withhold the children from the father. She disappeared and could not be contacted. She acted in that way because she apparently believed that the father presented some sort of danger to the children. The father then commenced proceedings for a recovery order, and the mother commenced proceedings to vary the Geelong Orders. The mother sought that the children live with her on a full-time basis, and spend only limited time with the father.
c)In December 2006, the mother's concerns about the father were such that she formed the view that they would be better off if she was dead. Clearly, the mother's concerns at that time were in the context of a psychiatric episode and were a consequence of disordered thinking.
d)The mother appears to have concerns to the effect that the father cannot look after the children. She has acted on those concerns in the past ─ by withholding the children from the father, by disappearing, and by having thoughts of harming the children.
e)The mother's concerns regarding the father do not reflect reality, and are simply a product of her disordered thinking. Regrettably, that disordered thinking is still present (at least in part, and even when ever the mother is clinically “well”). The mother has not acknowledged that the father is a good father, and she changed her case (abandoning Plan A in the process) "due to the constraints of her own medical condition, and not because she thinks that the father is giving the children the care and stability that he says that he provides".
f)The mother's evidence was to the effect that she had suicidal feelings in April 2007. She said that those feelings continued until the trial, and that thoughts of death are always at the back of her mind. Given that the mother can become clinically unwell within a short space of time, the father is understandably concerned that she may harm herself in front of the children or, alternatively, harm herself and the children, before help is available.
g)The evidence reveals that the mother had thoughts of harming the children in November 2005, and that she had similar thoughts in April 2006. In September 2006, she disappeared with the children. In December 2006, she spoke of pushing the children in front of a train. Notwithstanding the fact that the mother may have an excellent support network, the primary purpose of that network is not to protect the children, or even to monitor the mother when the children are in her care; its primary purpose is to care for the mother. It needs to be recognised, therefore, that there may be times when that network will not be effective in the sense of operating for the benefit of the children. A good example of the problem occurred in March 2007, when the mother contacted triage at the [omitted] Hospital (which is part of the mother's support network). The mother did not receive adequate assistance at that time, and she thereafter contacted Lifeline, saying that she was going to take an overdose. Lifeline would not have had any real knowledge of the mother's circumstances, and would have had no knowledge of or information about the children. Not long after that event, the mother was seen by Dr C. Although he felt that she was in a form of remission, she was admitted to hospital a short time later.
h)A constant theme of the evidence given by witnesses forming part of the mother's support network was the apparent need to assist the mother to work towards self-sufficiency. To use Dr V’s description, witnesses saw it as desirable that the mother not be "infantilised".
i)Ms Ben Simon asked Ms S, in cross examination, regarding her recollection of the mother being admitted to hospital since December 2006. Ms S could not recall that the mother had been admitted in March and April 2007. This omission is significant. Neither the mother nor Ms S made reference to the hospitalisations in their affidavit material. Further, Ms S said that she could not be responsible for monitoring the care of the children, and that she is not the only person in her team who deals with the mother. She only has a rough idea of when the mother has the children, and relies on the mother for that information.
j)On a weekend when her mother was present, the mother was unwell and required assistance. Her mother was able "to step into the breach" and, as a result, the mother was able to take medication, go to sleep and continue her time with the children. In other words, because her mother was in substantial attendance, it did not become necessary for the children to be returned to the father. Again, that information was not volunteered to the court.
k)The mother herself is inherently resistant to returning the children to the father when they are with her. The evidence reveals that the mother will do everything in her power to cope with any event during which she becomes clinically unwell. Although the mother may have managed to cope in the past, there is clearly no guarantee that she will be able to cope in the future. Further, the likelihood is that if the mother perceives that the children may be removed from her, then she is less likely to volunteer, or even admit, that she is becoming clinically unwell.
l)From the point of view of the children, having an appropriate person in substantial attendance is far more beneficial than some form of monitoring arrangement. If the mother becomes clinically unwell, then the problem may be able to be managed in the mother's household (by a person who is already present), and without the need for the children to be returned to the father. That is clearly less disruptive for the children. If the problem cannot be managed in the mother's household, then somebody is on hand to ensure that the children are safe while the mother obtains assistance, and return the children to the father if necessary. At the same time, having an appropriate person in substantial attendance avoids the possibility of the mother's condition being misread during the monitoring process ─ thereby placing the children in danger or, alternatively, causing the children to be removed from the mother's care when there was no real need for that to occur.
m)It should not be overlooked that Dr V himself was dismissive of the monitoring process. He felt that it was superficial and unlikely to be effective.
In essence, Ms Ben Simon's submission was to the effect that the risks to the children might be regarded as "acceptable" if a person is in substantial attendance at all relevant times, but that those risks must be regarded as unacceptable if there is only limited monitoring as proposed by the ICL and the mother.
During the course of closing addresses, I suggested that the proposal for monitoring be "reality tested". I referred to the evidence of the mother's mother regarding the weekend during which the mother's mental health began to deteriorate. Ms M described the weekend around Easter 2007 as follows:
I felt the mother was getting distressed, and either the mother or I contacted Ms S. While I was supervising, I saw that the mother was stressed. It did not affect her ability to care for the children. I contacted Ms S (or someone that the mother spoke with or speaks with) on the Saturday night ─ or at some other time on the Saturday when the children were there ─ to say that the mother was finding it stressful. The mother took a sedative, and she was all right on the Sunday. The children were returned to the father on the Monday.
The mother was in fact admitted to hospital soon afterwards, in a clinically unwell state. One can only speculate as to what would have occurred during the weekend if Ms M had not been present. Almost certainly, the mother would have attempted to cope, which may have led to her becoming clinically unwell at a much earlier stage. If Dr V is correct, then there is no certainty that a monitor on the other end of the telephone would have identified the deterioration in the mother’s mental health. Because Ms M was present, however, there was no need for the children to be returned. Because she was present, the mother's health could be managed, and managed effectively ─ and the mother was able to take a sedative and rest. If Ms M had not been present, then the mother might have felt inclined not to take a sedative, and that, in itself, may have caused the mother more stress and triggered some form of episode.
Ms Ben Simon emphasised that, until now, the father had effectively been "sidelined" by those comprising the mother’s support network. The evidence reveals that the members of that network had no real intention of telling the father about the children and any risks that they may be facing whilst in the mother’s care. They (and the mother) felt that such risks could be managed by the support network internally and that, given the relationship between the parties, the father should not be regarded as a constructive part of the solution. By way of example,
Ms Ben Simon referred to the fact that Ms S’s, affidavit prepared at the beginning of 2007 was silent about threats of harm to the children.
It was only after material had been produced to the court pursuant to the subpoena process that the father was able to discover what had happened in December 2006 (and earlier). Although the father was aware (in general terms) that the mother had been clinically unwell, and although he knew that she was unable to care for the children at times, he did not know that the children had arguably been placed at serious risk.
I accept and adopt Ms Ben Simon's submissions.
Generally speaking, I was not persuaded by Ms Tulloch's submissions on behalf of the mother. In my opinion, those submissions clearly revealed that the mother had lost sight of the need to place the best interests of the children in a position of paramountcy.
When all is said and done, the primary challenge for the court was to put in place arrangements that could enable the children to spend substantial and significant time with their mother whilst, at the same time, minimising the potentiality of harm to them. To her credit,
Ms Tulloch conceded that "the mother does not resile from many of the issues and risks that the father has concerns about" and that "there is no right or wrong answer" when comparing the parties’ proposals. In those circumstances, it is difficult to understand why the mother and the ICL remained steadfast in their apparent opposition to the father's proposals.
Section 60CC Factors
I now turn to consider the section 60CC factors.
Before proceeding further, however, I remind myself that I must regard the children’s best interests as comprising the paramount consideration in this case. It is for the purpose of determining which party's proposal best promotes that consideration that I must consider the matters set out in section 60CC.
Meaningful relationship
It is not in dispute that the children have a close and loving, and meaningful (in every sense), relationship with both parties.
Ms Ben Simon submitted, and I accept, that the father's proposal is arguably more conducive to the continuation of the children's meaningful relationship with the mother than is the mother's proposal. That is so because an appropriate person in substantial attendance when the children are with the mother is unlikely to overreact (or under react) if the mother's behaviour or presentation starts to deteriorate.
In other words, an appropriate person in substantial attendance is unlikely to misread the situation. It follows that the children will be able to remain with the mother if she is genuinely able to cope, and that they will be returned to the father if she is not.
On the basis of the evidence before me, I find that the mother is more likely to be able to effectively care for the children for shorter periods than for longer periods. The longer that the children are with her, the more likely it becomes that she will develop symptoms indicating that she has become clinically unwell.
I find that the father recognises the benefit to the children of having a meaningful relationship with their mother. I find that he is prepared to cooperate in ensuring that the children's relationship with their mother will be maintained, and that he will promote that relationship to the extent to which he is able.
Given the mother's mistrust of the father (which, I find, is unwarranted) and her generally negative attitude towards him, I am not persuaded that she recognises the benefit to the children of having a meaningful relationship with the father. Nor am I persuaded that, if left to her own devices, she is likely to promote such a relationship.
Overall, I find that this consideration favours the father's proposal over the mother's proposal.
Protection from harm
There is no need for me to restate the evidence regarding the mother's psychological and mental health. By the end of the trial, it was conceded that the mother should not have the care of the children on a completely unsupervised basis. It was also conceded that the children should live principally with the father. Notwithstanding the attempts of certain of the witnesses to minimise some of the manifestations of the mother's mental health problems, the unfortunate fact of the matter is that there is a need (and an obvious one) to protect the children from the potentiality of harm while they are in the mother's care. There is no need to exaggerate that potentiality, and the father recognises the important and constructive role that has been played by the mother's family and broader support network. He does not insist upon strict supervision when the children are with the mother, and nor should he. The seminal question is whether a monitoring arrangement is sufficient to protect the children from the potentiality of harm when they are with the mother. In my opinion, it is not ─ at least, not in the short to medium term.
I find that the father's proposal is more likely to satisfy this consideration that the mother's proposal. The orders that I have made, however, reflect my view that there is scope for a "hybrid" arrangement, because the potentiality of harm increases in proportion to the length of time that the children spend with the mother.
Ms Tulloch argued that "all risks are not equal". She suggested that the mother's proposals deal adequately with the risks to the children of spending time with her, and that the requirement for substantial attendance "sets the bar way too high". As indicated above, I am not persuaded by Ms Tulloch's submissions. Although monitoring may well be appropriate (in due course) for shorter periods, the best interests of the children demand that there be substantial attendance for longer periods.
I understand that the mother's case is to the effect that she is aware when she is becoming unwell. For example, the mother deposed to the following in her affidavit sworn 21 February 2007:
9. When I am becoming unwell, I know it is happening. I get warning signals. Everything becomes a big effort, including the house work, getting up in the morning, making lunches for the children and getting them to school/day care. Daily tasks such as cooking, washing and cleaning become very hard. I begin to cry very easily. I was first diagnosed with bipolar disorder in 1995. I have subsequently been diagnosed as suffering from aspects of other disorders, namely anxiety disorder and borderline personality disorder. I have therefore been dealing with my illnesses for a long time now. Over the years, I have been learning how to manage my illnesses. I have, in particular, been learning how to recognise the signals that an episode may be coming so that I can take steps to prepare for it.
10. Whenever I recognise the signals, I immediately inform my friends and family who are in contact with me every day. I always immediately inform my sister Ms P who is a medical practitioner. I always immediately inform my case manager, Ms S … When I begin to recognise the signals, I always arrange for the children to be placed in the father's care. I always do this as soon as I recognise the signs that an episode may be coming on.
Having seen and heard the mother and her witnesses, I regret to have to record that I have little confidence in the mother's ability to "recognise the signals" and to always take suitable action to protect the children ─ particularly when the children are already in her care. Further, the evidence does not support the mother's assertion that she always arranges for the children to be placed in the father's care when she begins to "recognise the signals" (or as soon as she recognises the signs that an episode may be coming on). It would appear that the mother has never voluntarily returned the children to the father when they have been in her care. Her approach to the problem, to date, has been to retain the care of the children – and to “hang on” – for as long as possible. If the mother misjudges her timing, then the children could be subject to serious harm (or become witnesses to a tragic event). I am not prepared to “gamble” in such circumstances, and the orders that I have made reflect my view that a cautious, protective and child-focused approach should be adopted.
In any event, Ms Tulloch accepted that "there is no right or wrong answer". It follows that she cannot realistically complain about the orders that I have made.
Children's views
The children's views are not a relevant consideration in the unusual circumstances of this case, and none of the parties suggested that they were.
Nature of relationship
This does not appear to be a relevant consideration in this matter, and none of the parties suggested that it was. Clearly, the two proposals are not so fundamentally different as to give rise to varying consequences from the point of view of the children's relationship with their parents (or with others, for that matter). In one respect, however, it may be argued that the father's proposal better meet the needs of this consideration than does the mother's proposal. The evidence from the mother's sister is that the children's cousins will sometimes be brought down from Sydney when their parents are required to be in substantial attendance. To that extent, the requirement for substantial attendance facilitates the children's relationship with their cousins, their aunts and uncles and their grandmother.
Facilitation and encouragement of relationship between children and parent
I find that the father is both willing and able to facilitate and encourage a close and continuing relationship between the children and their mother. Although the mother's willingness and ability to achieve those aims are less apparent, she has, by and large, met the core requirements of this consideration. When problems have arisen (such as at the commencement of these proceedings), it is fair to say ─ as Ms Ben Simon submitted ─ that they were usually the result of disordered thinking on the mother's part.
This consideration, in itself, does not seem to favour one proposal over the other.
Effect of changes in children's circumstances
This consideration does not appear to be relevant, and neither party suggested that it was. Again, it should be borne in mind that the ambit of the dispute between the parties was relatively narrow.
There is certainly no evidence that the children would be adversely affected by spending only four consecutive nights per fortnight with the mother (as opposed to five consecutive nights). On the other hand, the longer the period that the children spend with the mother, the more important it becomes to put in place workable and effective protective mechanisms for the benefit of the children. In practical terms, that translates to a preference for using monitoring (as opposed to substantial attendance) at the commencement of the time that the mother is to spend with the children ─ but for relatively short periods only.
Practical difficulties and expense associated with contact
There is clearly a practical difficulty associated with the requirement that an appropriate person be in substantial attendance whenever the children are in the mother’s care. To that extent, it could well be considered "easier" if the mother's proposal were to be adopted. Nevertheless, the mother's mother and sister (who both live in New South Wales ─ the mother's mother in [omitted] in the Blue Mountains, and the mother's sister in Sydney) made it clear that they are prepared to assist her by being in substantial attendance if that is considered necessary by the court. The mother is certainly very fortunate in that regard. Her family is very supportive of her, and I find that they will not allow the practical problems associated with the substantial attendance requirement to adversely affect the children's right to maintain personal relations and have direct contact with the mother on a regular basis. In other words, I find that the mother's family and broader support network will cooperate in such a way as to minimise the negative aspects of this consideration.
I accept that, taken in isolation, this consideration might be thought to favour the mother's proposal. I have found, however, that any relevant problems can be overcome. Further, the consideration must be approached in the light of the court's obligation to determine what is in the children's best interests. The totality of the evidence before me (and, in particular, the evidence relating to the mother's mental health difficulties) serves to place this consideration in its proper context.
Ms Tulloch argued that the inconvenience to the mother's family and broader support network of ensuring that an appropriate person is in substantial attendance at all relevant times may have "a very real impact on the prospect of substantial attendance not being able to be put into effect on an ongoing basis". Obviously, if the substantial attendance cannot be arranged, then the children will not be able to spend time with their mother. I find, however, that there is no merit in Ms Tulloch's submission. The preponderance of the evidence before me supports a conclusion to the effect that the mother's family will ensure that the children's time with the mother is not curtailed. In any event, there are similarities between the monitoring and substantial attendance options in this regard, in that there is always the possibility that a suitable monitor will not be available to perform his or her specified role (in which case the children will not be able to spend time with the mother) – although I accept that the monitoring arrangement is far less onerous on third parties that substantial attendance.
I do not accept Ms Tulloch's submission to the effect that the mother's family will be under "enormous pressure" due to travelling from New South Wales on a regular basis. The oral evidence of the mother's mother and sister, and the concessions made by each, is to the contrary.
Even if I am wrong in concluding that the mother's family will ensure that the children's time with her will not be curtailed, the structure of the orders that I have made is such that, after the initial period of 12 months, the mother will be able to spend at least some time with the children on a regular basis even if no one is available to be in substantial attendance.
Capacity to provide for the children's needs
It is not in dispute that the father has the capacity to provide for the children's needs, including their emotional and intellectual needs. Provided that the mother is not clinically unwell, she can also provide for the children's needs in that regard.
This consideration (in itself) does not appear to favour one proposal over the other.
Maturity, lifestyle and background of the children and the parties
In my opinion, this consideration (in itself) does not favour one proposal over the other.
Attitude to the children and to responsibilities of parenthood, family violence and orders least likely to lead to the institution of further proceedings
During the course of her closing submissions, Ms Tulloch said (seemingly in support of the mother's proposal) that "the father is going to have to do what he has always done, and that is be in a position to assist the mother if things are not working properly". In other words, Ms Tulloch suggested that the father (as the alternate carer for the children) will have to be an integral part of the monitoring process or scheme. In my opinion, Ms Tulloch's submission in that regard is eloquent testimony to the father's positive attitude to the children, and to his mature acceptance of the responsibilities of parenthood.
In my opinion, these considerations do not otherwise favour one proposal over the other.
Conclusion as to most satisfactory proposal
In my opinion, and
a)bearing in mind that the children's best interests remain the overriding consideration;
b)taking into account the objects and principles set out in section 60B; and
c)having regard to my discussion of the section 60CC factors above,
I conclude that the father's proposal is more likely to be in the children's best interests than the mother's proposal.
I have already made orders as set out in the preamble to these Reasons. The orders were made on 9 November 2007, after advising the parties of my decision on the previous day, and after giving them the opportunity to prepare orders in an agreed form.
Conclusion
I have borne firmly in mind, throughout my consideration of the parties’ competing applications, the various factors and considerations referred to under the heading "the Law" above. I have also borne in mind the other legislative provisions or authorities referred to in these Reasons. I have imposed no legal or other onus on any party, and have applied no presumptions of any sort (beyond those that the law requires me to consider and apply). I have deduced from the evidence, and from my assessment of the parties and the witnesses, the essence of the competing proposals ─ and I decide, having considered all the factors that I believe to be relevant, that the orders that I have made are those that are most likely to protect the children and advance their best interests (which, after all, comprise the paramount consideration in these proceedings).
As I have explained above, it was agreed that the parties should retain equal shared parental responsibility for the children.
Put another way, and bearing in mind the formal steps or "pathway" that should be followed in parenting proceedings, my conclusions can be summarised as follows:
a)I have considered making an order that the children spend equal time with their parents, but have rejected that option for the reasons set out above and ─ importantly ─ because the mother abandoned her claim for a week about arrangement. In summary, I am of the view that an equal time arrangement would be contrary to the children's best interests as a result of the application of the factors in section 60CC.
b)Equal time is not impracticable in a physical or "mechanical" sense. There is a strong argument, however, that the mother's mental health difficulties (as described in detail in these Reasons) make it impracticable in a broader sense, and otherwise unadvisable.
c)I have considered making an order that the children spend substantial and significant time with the mother. Indeed, the orders that I have made provide for that to occur.
I confirm that, in my opinion, the orders made on 9 October 2007 are in the children's best interests.
I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate: Suzette De La Motte
Date: 14 August 2008
See, for example, Hungerford & Tank (2007) FamCA 637 and M & S (2006) FamCA 1408 at
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