CARTER and CARTER (by her Case Guardian MR SARGENT)
[2017] FCWA 64
•25 MAY 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: CARTER and CARTER (by her Case Guardian MR SARGENT) [2017] FCWA 64
CORAM: O'BRIEN J
HEARD: 6-10 FEBRUARY 2017
DELIVERED : 25 MAY 2017
FILE NO/S: PTW 5187 of 2012
BETWEEN: MR CARTER
Applicant
AND
MS CARTER (by her Case Guardian MR SARGENT)
Respondent
Catchwords:
PARENTING - where the Respondent suffers from mental health issues but is a devoted and capable parent - where children wish to spend more time with the Respondent - where the Applicant contends that no structured order for time should be made given the Respondent's health - where the Applicant seeks sole parental responsibility - where the Respondent seeks equal shared parental responsibility and structured progression to equal time.
PROPERTY SETTLEMENT - where parties' savings were reduced post-separation while controlled by the Applicant - assessment of contributions where the Respondent's mental health restricted her ability to contribute - treatment of debt incurred by the Applicant post-separation - treatment of paid and unpaid legal fees.
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr M Nicholls QC
Respondent: Mr S Jones
Independent Children's Lawyer : Ms R Cohen
Solicitors:
Applicant: Leach Legal
Respondent: Perth Family Lawyers
Independent Children's Lawyer : Platinum Legal
Case(s) referred to in judgment(s):
Bondelmonte & Bondelmonte (2016) 91 ALJR 402
Dickons & Dickons (2012) 50 Fam LR 244
Steinbrenner & Steinbrenner [2008] FamCAFC 193
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Brief overview
1[Mr Carter] (“the husband”) and [Ms Carter] (“the wife”) began living together in February 2000, married [in] 2004 and separated in March 2011. They were divorced in May 2013. They have two children together: [Child A], born [in] 2004 and [Child B], born [in] 2007.
2Sadly, the parties have been involved in proceedings in this Court since September 2012. They have been unable to reach any final agreement in relation to the parenting arrangements for the children and their financial affairs also remain unresolved.
3Central to the dispute between the parties about the arrangements for the children are the difficulties which arise because of the significant mental health issues suffered by the wife.
4While it is the wife who has suffered from those issues, they have also impacted significantly on the husband, the children and both the maternal and paternal grandparents. They have caused strain not only in the relationship between the parties, but also in the extended relationships between the two families in circumstances where all concerned have been under considerable stress. Those tensions have been compounded by communication difficulties and by perceptions. The wife’s family has perceived the husband and his family to be controlling and unsympathetic in their dealings with the wife. The husband and his family have perceived the wife’s father in particular as being assertive to the point of aggression.
5The relationships between the families were further strained when concerns were raised that Child A might have been sexually abused while in the care of the wife, staying at her parent’s home. The wife had herself been sexually abused by a male relative when she was a child.
6The wife’s father [Mr Sargent] was appointed by consent as her Case Guardian in the proceedings on 22 March 2016. Prior to that, efforts to progress the matter towards finalisation had stalled for a variety of reasons, generally associated with the wife’s state of health.
7By the time of the trial, the wife’s health was improved although she still required regular support. She did not give evidence at trial, but was present at various times during the hearing.
8The children presently live with the husband. Unless otherwise agreed between the parties they see the wife each week, generally spending two non-consecutive nights in her care. It is common ground that the children love the wife and want to spend more time with her.
9The husband’s case is that there should be an order for him to have sole parental responsibility for the children so that he is able to make necessary decisions for them at any time, regardless of the state of the wife’s health. He says that he will consult appropriately with the wife when she is well, but that he should not be inhibited from making decisions for the benefit of the children when she is unwell.
10The husband also seeks an order that the children live with him. He contends that there should be no order for the children to spend time with the wife, asserting that he can be trusted to continue to facilitate the children’s relationship with the wife and to make informal arrangements for them to spend time with her. He argues that the uncertainty surrounding the wife’s mental health is such that a structured order for the children to spend time with her is “set up to fail” and expresses concern at the prospect of facing an allegation that he has contravened court orders.
11The wife seeks equal shared parental responsibility. She seeks structured orders for the children to spend time with her, progressing to an arrangement whereby they would live equally with her and with the husband. She argues that major long-term decisions about the children should be made jointly and that the process of doing so would not be inhibited in any meaningful way by short-term relapses in her health. She perceives a need not only for the children to spend more time with her, but for the arrangements to be structured rather than reliant on the goodwill of the husband and subject to his judgement.
12Further issues flow from those central issues.
13The husband says that if, contrary to his primary position, an order granting him sole parental responsibility is not made then such orders that are made will need to address what might be described as a “shift” in parental responsibility to him at times when the wife is unwell. The wife regards that as unnecessary.
14If an order is made for the children to spend time with the wife, incorporating a structured timetable, both parties recognise the need for a default position, defining what arrangements are to be made for the children if the wife is unwell at a time when they are scheduled to be with her. The husband says that in those circumstances the children should return to his care, arguing that the maternal grandparents should not adopt a role as “substitute parents”. The wife says that the routine established by any orders should continue even if she is unwell, arguing that the stability of routine for the children as they move between households is important and that short-term care by her parents is both normal and appropriate.
15The determination of those issues requires not only an analysis of the evidence in relation to the wife’s mental health, but also a consideration of the issues leading to the difficult relationship between the husband and the wife’s parents.
16Understandably, the focus at trial was primarily on parenting issues. The financial dispute between the parties is not complex and its parameters will be outlined separately later in these reasons.
Relevant history
17Given the nature of the matters in issue in the parenting dispute, it is necessary to set out the relevant history in some detail. Fortunately, little of the factual history is in dispute; with certain exceptions referred to in more detail below, any such disputes related more to matters of perception and interpretation than fact.
18The parties were both born in 1975. At the time they began living together in early 2000, they were both working full-time; the wife as [an] [engineer] and the husband as a director at a [commercial business]. In 2001, they bought a block of land and built a house together, moving into the home in May 2002.
19In late 2002, the husband founded a [business]. In mid-2003, the wife ceased employment. Child A was born in October 2004 and after her birth the wife was primarily occupied with her care.
20From late 2006 until mid-2007 the husband’s interest in his business was sold and the business itself was sold to a third party company. The husband took up employment with that company.
21In August 2009 the husband started a new business with a colleague. Later that year the parties sold their home and bought a house in [Suburb A] which they still own.
22The wife’s mental health began to decline in 2007, after the birth of Child B. Her health deteriorated further, to the point that in September 2010 she sought help and was admitted to [a mental health clinic]. At the time, she expressed a concern to her doctor that if she were to kill herself she would “take the children with her”.
23Over the latter months of 2010, the wife spent significant periods in hospital. In November 2010 she overdosed.
24In early 2011, the wife was again admitted to [the mental health clinic] for a significant period. She underwent electrical current therapy; at one point, due to an error on the part of those administering the treatment, she received a significantly higher dosage of electrical current than was prescribed and suffered memory loss as a result.
25In March 2011 the parties separated and the wife went to live with her parents. From time to time, she returned to the matrimonial home before moving out finally in September 2011. There were further admissions to the mental health clinic.
26In September 2011 the wife again overdosed and was hospitalised.
27Towards the end of 2011, on the husband’s evidence, the children began exhibiting some behavioural changes after spending time with the wife at her parents’ home. Child A began to suffer from vaginal irritation and also suffered urinary tract infections.
28The husband remained primarily responsible for the care of the children. He reduced his work to part-time levels and resigned from his employment at the end of 2011. He subsequently obtained project work. He undertook a number of financial transactions referred to in more detail later in these reasons.
29In mid-2012 the wife began some part-time work and the children began spending more regular time with her. In July 2012, the husband’s own mental and emotional health deteriorated and he was admitted to [a mental health centre] to recover.
30In September 2012 the husband commenced proceedings. He filed a Form 4 notice of child abuse or family violence. The Department of Child Protection and Family Services investigated the concerns that had been raised and found the allegations to be unsubstantiated.
31Subsequently, an Independent Children’s Lawyer (“ICL”) and a Single Expert Witness psychologist were appointed.
32In January 2014 the husband changed employment. The children began spending time unsupervised with the wife, including overnight stays, on the basis of regular reports being provided by her psychiatrist. At about the same time, the wife began seeing [Dr H] as her treating psychiatrist; to that point she had been under the care of [Dr F].
33In early 2015, the husband obtained a loan of $100,000.00 from his parents. A formal loan agreement was prepared and a caveat lodged against the jointly owned property. At about the same time, the husband changed his employment.
34In March 2015 the wife’s mental health again deteriorated. She sent the husband a text message to the effect that she was unable to have the children and later sent him an email expressing an intention to harm herself. She was admitted to hospital and later to the mental health clinic, having overdosed on medication. She changed treating psychiatrists, coming under the care of [Dr L].
35In June 2015, at a time when the children were in her care, the wife told the husband that she needed to go to the mental health clinic. She was admitted, diagnosed as suffering from major depression, and remained in the Clinic for approximately six weeks. She was subsequently admitted for a further period from late October 2015 until mid-December 2015.
36In March 2016 the husband changed employment. The following month, his parents extended their loan to him by a further $50,000.00.
37The wife spent much of April 2016 as an inpatient at the mental health clinic. She was admitted again in July 2016.
38In December 2016 the husband’s parents agreed to further extend their loan to him by another $70,000.00.
39The extent of the wife’s health difficulties, and their impact both on her and on the entire family, is illustrated by noting that over the period 20 September 2010 to 8 December 2016, she spent approximately 550 days as an inpatient at the mental health clinic.
40By the time of trial, the husband was working full-time. The children were primarily in his care, living with him in the Suburb A home. The wife had commenced part-time employment and, while living with her parents, was hopeful of being in a position to live independently after the conclusion of the proceedings.
The law – the parenting case
41Section 65D of the Family Law Act 1975 (Cth) (“the Act”) provides that the court may make such parenting order as it thinks proper.
42As the High Court recently observed in Bondelmonte & Bondelmonte (2016) 91 ALJR 402 at [32]:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
43Section 60B of the Act sets out the objects of Pt VII and the principles underlying it. In light of submissions made on behalf of the husband as to the approach to be taken by the court, it is appropriate to set out the relevant parts of that section in full:
(1)The objects of this Part are 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 their children.
(2)The principles underlying these objects are 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).
44Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
45If an order for equal shared parental responsibility is to be made, I am required to consider whether the children spending equal time with each of their parents would be in their best interests and whether such an arrangement would be reasonably practicable. If so, I am then required to consider making such an order.
46Again against the background of an order for equal shared parental responsibility being made, if I do not make an order for the children to spend equal time with each parent I am required to consider whether spending substantial and significant time (as that term is defined in the Act) with each parent would be in their best interests and reasonably practicable. If so, I am required to consider making such an order.
47In determining what is in the children’s best interests, I am required to consider the matters set out in s 60CC of the Act. While those matters are divided in the legislation into “primary” and “additional” considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations.
48The court is not, in my view, obliged to make any orders simply because an application for parenting orders is made. It is open to the court to decline to make any parenting orders at all. Similarly, the fact that the husband himself seeks orders in relation to parental responsibility, and with whom the children are to live, does not necessarily mean that the court is obliged to make an order that the children spend time with the wife, even though it is common ground that they should.
49The children’s best interests are the paramount, but not the only, consideration. The interests of the parties may also be considered, provided always that the children’s best interests remain paramount.
The law – the financial case
50In determining an application for alteration of property interests, the court has a wide discretion conferred by s 79(1) of the Act. That discretion must be exercised in accordance with legal principle and the court should not assume that the parties’ interests in assets are or should be different from those already determined by common law and equity.
51The court must be satisfied that it is just and equitable to make an order adjusting existing property interests. In then determining what orders will be just and equitable the court’s power is not confined by any series of “steps”. Having said that, the court will satisfy the legislative requirements if it identifies and values the assets and liabilities of the parties, assesses each party’s contributions to the assets including any assets which have ceased to be owned by them, assesses the factors in s 79(4)(d) to (g) of the Act and considers whether the proposed orders are just and equitable.
52The court is required to consider the respective contributions of the parties holistically over the whole period to trial. There is no requirement, legislative or otherwise, for the entitlements of the parties to be expressed in the form of percentages, nor is a strict mathematical or accounting approach required.
53As one of the options available to it in determining a just and equitable property settlement, the court has the power to split superannuation entitlements. It is not, however, compelled to do so.
54In appropriate circumstances the court may, in the exercise of its discretion, take into account the conduct of a party who has deliberately, recklessly, negligently or wantonly acted in a manner which has caused financial loss.
55The relevant power of the court is to make orders altering existing interests in existing property.
56That said, it is open to the court in the course of its deliberations to notionally add back the value of assets which no longer exist, simply as an aid to the considerations necessary to exercise its discretion to alter the interests of the parties in existing property. By approaching the matter in that way, the court is not purporting to create or alter interests in what is sometimes termed “notional property”. It is the exercise of adding back which is notional and that exercise is no more or less than a device to assist the court in exercising its discretion.
The evidence at trial
57The husband relied on the following affidavits:
a)his trial affidavit filed on 8 August 2016;
b)his affidavit filed 2 February 2017;
c)the affidavit of his partner, [Dr K], filed 18 April 2016;
d)the affidavit of his mother, [Mrs Carter], filed 18 April 2016;
e)the affidavit of his father, [Mr K Carter], filed 4 August 2016;
f)the affidavit of his sister, [Ms C Carter], filed 18 April 2016;
g)the affidavit of [Ms C] filed 18 April 2016;
h)the affidavit of [Ms S] filed 18 April 2016;
i)the affidavit of [Mr G] filed 18 April 2016;
j)the affidavit of [Ms G] filed 4 August 2016; and
k)his Form 13 financial statement filed 18 April 2016.
58The wife relied on the following affidavits:
a)trial affidavit of Mr Sargent filed 18 January 2017;
b)the affidavit of [Mrs Sargent] filed 11 August 2016;
c)the affidavit of [Mr B] filed 11 January 2017;
d)the affidavit of Dr F filed 31 January 2017; and
e)her Form 13 financial statement filed 11August 2016.
59The ICL relied on the evidence of Dr L and the wife relied on the evidence of [Ms R]; neither witness swore an affidavit but rather appeared under subpoena.
60The Single Expert Witness Mr De Rooster prepared two separate reports and his affidavits filed on 18 October 2013 and 2 February 2017 exhibiting those reports were in evidence.
61Memoranda from the family consultants who conducted the case assessment conference and child dispute conference were tendered in evidence, as were various documents produced under subpoena.
Observations as to the oral evidence at trial
62The husband was cross-examined extensively. He was reserved and careful in his presentation. He presented as intelligent and particular, bordering at times on being fastidious in his concern to be precise and accurate in his answers. While for the most part he was not particularly open or expansive in his responses to questions, I did not regard him as being evasive; rather, he demonstrated a level of caution which was understandable given the history of the matter and the stresses of trial.
63His demeanour was somewhat formal and closed. By way of example, even when asked to describe the highlights of his holidays with the children there was no great enthusiasm or warmth in his responses. I formed the impression that he was truthful in saying that he did not intentionally behave in a controlling manner towards the wife and that he was simply doing his best in extraordinarily difficult circumstances; that said, his demeanour is such that it is perhaps understandable that he might be perceived as controlling by others, who were themselves also under enormous stress.
64He became emotional when giving evidence about his relationship with his own parents, expressing his worry that he was “a burden to them”.
65Within the constraints of his own personality, he spoke of the wife with empathy and respect. By way of example, when it was put to him that he had received access to the wife’s mental health records his response was “unfortunately, yes”. When asked why he regarded that as “unfortunate”, he said that he understood the wife’s need for privacy and that her treatment might be more effective if she maintained confidence in that privacy. He readily acknowledged the wife’s love for the children and that she is a good mother when she is well. He said that he worries about the wife’s health, and is careful about what he says to her, explaining that he would be devastated if he said anything that was a trigger for her to become unwell.
66When it was suggested to him that, if timetabling orders were to be made, they might appropriately be framed so that the children’s time with the wife was described as “living with” her rather than “spending time with” her, he responded by saying that he could see why that would potentially be of psychological benefit to the wife.
67He endeavoured to speak of the wife’s parents in an appropriate manner, while not hiding his conflict with them. He expressed what I regarded as a sincere desire to achieve what might be described as a manageable and courteous “working relationship” with them, without expressing any naive hope that more might be achieved. When asked by the ICL whether he accepted that it is important for the children to have a relationship with their maternal grandparents he agreed without hesitation. When asked to identify positive attributes of Mr Sargent, he again responded without hesitation, acknowledging that Mr Sargent was very concerned for the wife and had worked hard all his life for the benefit of his family.
68I regarded him as an honest witness, doing the best he can in difficult circumstances.
69The husband’s sister Ms C Carter gave her evidence in a straightforward and open manner. Her evidence was not seriously challenged. I regarded her as an honest witness.
70The husband’s father Mr K Carter was a man of very few words, who like his son gave his evidence in a careful and conservative manner. He was cross-examined only briefly and I had no reason to doubt his evidence.
71The husband’s mother Mrs Carter presented as a more open personality than her husband or son. She was articulate and unguarded in her answers to questions in cross-examination and spoke kindly and with warmth about the wife. She dealt with difficult questions surrounding the concerns which had been raised about possible abuse of Child A, and about the relationship between her family and the maternal grandparents, directly and sensibly. She was an impressive witness.
72The husband’s partner Dr K was somewhat terse and defensive in her presentation. By way of example, when courteously asked why she would say, having been in a relationship with the husband for some four years, that she did not have any particular sense of his general working hours she responded “why should I? I am not his keeper”. That said, she was cross-examined only briefly and I accept that her evidence was honest.
73Mr Sargent gave his evidence in a direct and confident manner. While at times he had an understandable inclination to advocate on behalf of his daughter, by the same token he did not hesitate in acknowledging that the husband was “doing a good job” with the children and accepted the possibility of the wife’s perceptions in relation to various matters being coloured by her illness.
74He was firm in his rejection of criticism of the way in which the wife had herself been parented as a child, but presented that rejection in a calm and measured way. He gave sensible answers to questions from me, acknowledging that a lower perception of risk to the children might lead to less attention being paid to guarding against those risks.
75While denying that he had been aggressive in his behaviour towards the husband and his parents, or that his approach towards them was lacking in empathy, he acknowledged that all concerned were under stress and apologised if offence had been caused. He volunteered that he is of the view that he “thrives” on stress and manages it well; when asked whether he might manage it well at the expense of others around him, he suggested that was a good question to be put to his wife.
76Mr Sargent is a strong and confident personality. For example, he had no hesitation in politely (and, with respect, accurately) suggesting that certain questions put to him were more appropriately put to the wife’s treating doctors. I accept that he is a person who, when confronted with a problem, seeks to actively address the problem and “take charge” and that with the benefit of hindsight some of his actions in the very difficult circumstances faced by the entire family could have been approached with more sensitivity. I accept also that at times when he perceived the wife to be treated unfairly, either in relation to the children or in relation to financial matters, it is likely that he reacted in an angry manner.
77That said, I regarded him as an honest witness who was sincere in his care for his daughter and his expressions of hope that the interactions within the family would improve over time.
78The wife’s mother Mrs Sargent was cross-examined only briefly. She gave her evidence in a direct and open manner acknowledging, for example, her surprise that the wife had told her treating psychiatrist that she perceived her to be lacking in empathy. While it appears that she struggled to deal with issues arising from the childhood abuse suffered by the wife, and her subsequent mental health issues, I do not doubt that she gave her evidence honestly.
79The court had the benefit of evidence from a number of professional witnesses.
80The Single Expert Witness, Mr De Rooster, gave his evidence in a professional and objective manner. When I asked him to what extent Child A’s expressed preference to spend equal time with each parent might be driven by sympathy for the wife or by a sense of fairness between two parents who she loves, he readily acknowledged that he had not explored that possibility and that it would have been helpful if he had. His evidence was balanced and professional.
81His presentation was somewhat in contrast with that of the wife’s treating psychiatrist Dr L. Dr L is clearly devoted to her patient, and has strong views as to the important role played by mothers in the lives of their children. That at times led to certain components of her evidence taking on elements of passionate advocacy on behalf of the wife. To her credit though, Dr L readily and appropriately acknowledged that she had only one side of “the story”.
82While those elements of Dr L’s presentation suggested that her dedication to the interests of her patient might colour her objectivity, her evidence as to the wife’s condition, presentation and compliance with treatment recommendations was helpful to me.
83The wife’s former treating psychiatrist, Dr F, also gave evidence. She did so in an open and honest manner while being somewhat less than precise about some matters of detail, not having treated the wife for some years, and not having reviewed her notes prior to giving evidence. She had developed a friendship with the wife such that at a point in time where she was still the wife’s treating psychiatrist, the wife had acted as her “house sitter” during a period when she and her husband were away on holidays. The friendship subsequently developed to the point that the wife lived with Dr F and her husband for a period of approximately two years. Appropriately, Dr F ceased her role as the wife’s treating psychiatrist and arranged for alternative care for her.
84Notwithstanding that relationship, Dr F gave evidence in an objective manner. She recalled the husband’s distress at the time, prior to separation, when the wife was wrongly treated with a high dosage of electrical current. She spoke warmly of his care for the wife during her time as an inpatient prior to the breakdown of the marriage. When asked whether she had much contact with the husband after the parties separated, she said that she had. She observed that the husband had remained very involved in the wife’s care, was genuinely and consistently concerned about her and had kept in regular contact with her treating doctors. Her evidence was helpful to me.
85Dr F’s husband Mr B was required to attend for the purpose of a very few brief questions in cross-examination, which he answered openly and frankly.
86Ms R is a marriage and family therapist who has practised at the mental health clinic for just over 20 years. She first met the wife in September 2010 and has assisted her both as a group therapist during periods of admission and in individual supportive work. She gave her evidence in a measured and professional manner and was open and frank in her presentation. She was an honest witness and I found her evidence helpful.
87Given their centrality to the matters to be determined in the parenting case, it is appropriate to consider at this stage the questions of the wife’s mental health and the relationships between the husband and the wife and her family.
The wife’s health
88Dr L is presently the wife’s treating psychiatrist. She has been treating her since April 2015, after what was described as a “mismatch” between the wife and Dr H which was seen to impact negatively on the wife’s engagement in therapy. She has frequent contact with the wife, currently seeing her once a fortnight or thereabouts. When the wife’s depression becomes acute, she will see Dr L daily.
89Dr L explained that the wife’s current diagnosis is of a recurrent depressive illness, leading to relatively severe depression. She is treated with antidepressant, mood stabilising and antipsychotic medications. Dr L confirmed that those medications do not have side-effects that might compromise the wife’s capacity to care for herself or the children and explained the process of medication review when required.
90She noted that the wife is a perfectionist, who blames herself when she is unable to spend time with the children. She said that when unwell, the wife would display behaviours of helplessness, hopelessness, negative thinking and an inability to sleep. When asked about triggers affecting the wife’s health, she described her as being sensitive to interactions with family and friends and as being a person who found it difficult to defend herself or be assertive. Dr L, as already noted, clearly held strong views as to the impact on the wife’s mental health of any difficulties she encounters in spending time with the children.
91Dr L acknowledged that since 2010 suicidal ideation has been a regular thought process for the wife. She acknowledged that the assessment of risk of suicide was unpredictable and difficult, noting that a high percentage of actual suicides occur with people who are assessed as being low to medium risk. She explained that her own practice was to err on the side of caution and admit the patient if she thought there was a risk. She drew a clear distinction between suicidal ideation and actual intent and planning.
92Importantly, she identified a clear improvement in the wife’s mental health over time. She described the wife as her “most compliant” patient, who always seeks help as required and is well able to identify the occasions on which she needs help.
93She noted that the wife views herself positively as a mother and that even when unwell she makes an effort to mask her symptoms for the sake of the children; that she engages with them “brilliantly” and can parent effectively.
94She expressed a firm view that the wife has never been a risk to the children. She held that view notwithstanding earlier assessments recorded on the mental health clinic file.
95The notes of the wife’s assessment at the mental health clinic [in] September 2010 recorded the following:
Says she will not self harm (sic) while here but fears that one day she might become so desperate she’ll kill herself and take the children with her because nobody could care for them as well as her.
96The progress notes [in] October 2011 said:
[Ms Carter] says she woke up this morning with the first thought of wanting to die.… Mood remains low and flat. Presents as tearful and agitated. Very poor coping strategies still. [Ms Carter] spoke about the fact that she doesn’t often talk about her homicidal thoughts towards her children, but she thinks about it often. She feels that her husband doesn’t want the children and keeps reminding her that it is she who wanted to have kids. She also feels that her parents often complain about looking after the children and killing them and herself will solve that problem.
97Dr L noted not only a significant improvement in the wife’s mental health since those admissions, but also perceived the wife’s recognition of her thoughts at the time, and the fact that she sought help, as significant. She referred also to the steps taken by the wife to decline to have the children in her care at times when she was severely unwell.
98While not suggesting that the wife’s depressive illness was susceptible to cure, Dr L expressed confidence that it could be managed. She pointed not only to the improvement in the wife’s health, as evidenced in part by her increased engagement with friends and obtaining a job, but also to her self-awareness, compliance with treatment and active engagement in therapy. She noted the significant support of the wife’s parents, while expressing the clear view that it would be beneficial for the wife to progress to living independently rather than at her parent’s home. In her opinion, the wife would be “incredibly relieved” at the conclusion of these proceedings, but she doubted that would actually affect the wife’s day-to-day functioning, which she described as already being very good.
99Ms R has participated in the wife’s care as a marriage and family therapist since September 2010. She described the wife as presently being the “best she has ever seen her”, presenting as happier and more optimistic. Consistently with the evidence of Dr L, she described the wife as attending therapy regularly and participating actively. She noted a considerable improvement in the wife’s ability to “find her voice”.
100Ms R noted that from the outset the stressors in the wife’s life were to do with her understanding and management of her mental health symptoms and trying to be effective and caring in her role in her family. She noted that the wife had high expectations of herself and needed to find boundaries in that regard in order to reduce stress. She had worked with the wife to assist her in learning to seek help earlier, make appropriate use of medications and to implement strategies for managing her own stress.
101She said that the wife’s insight into her mental health issues was much improved over time and that she had moved on from her early inclination to blame herself based on her own high expectations. She attributed that to the wife’s commitment to therapy and her motivation and instinct to learn.
102While real or perceived difficulties in the wife’s relationship with her parents during her childhood were consistently noted in assessments, Ms R observed a growing understanding between the wife and her parents over time. She said that in the early stages of the wife’s illness, when she was having deeper struggles with herself, the problems between her and her parents were more significant, but that their communication had greatly improved. Ms R had met the wife’s parents about a dozen times and observed them to be caring, warm and interested.
103She noted that since the separation of the parties, the wife’s perception of her relationship with the husband showed that there were “functional cooperations” between them, not necessarily accompanied by warmth or a feeling of support.
104She noted that the wife had consistently said that reliable time with the children was very important to her. The wife described a deep and heartfelt loss at not being able to spend as much time with the children as she would like and found both the court process and ongoing negotiations with the husband very stressful.
105Mr De Rooster noted that all the psychiatrists involved with the wife were very positive and assessed her as posing no risk to the children. He was aware of, and had considered, the statements made by the wife and 2010 and 2011, but noted that the wife had appropriately sought help and taken steps to ensure that the children were safe. He noted further that since then, she had continued under regular treatment with which she had been compliant.
106He expressed the view that in many ways the wife is “extremely resilient”, as are the children. He described her as “an excellent mum” noting the degree of her interaction and communication with the children. He said that while teenagers present challenges for any parent, he felt she would cope with those challenges and said that he did not see a significant concern “just because she is depressed”.
107I accept the evidence of Dr L as the wife’s treating psychiatrist. I take into account also the valuable observations of Ms R and Mr De Rooster, while not attributing weight to any opinions expressed by them which might stretch the boundaries of their professional expertise.
The relationships between the husband, the wife and her family
108In her dealings with her doctors and therapists, the wife consistently reported issues in her childhood and adolescence. In a report dated April 2015, Dr L noted the wife as saying that “as a child she was treated with a profound lack of empathy”. A mental health clinic assessment note recorded the wife reporting that her childhood and adolescence were “unhappy due to abuse, sometimes good”. Notes prepared by Dr F and in March 2011 recorded the wife as “finding her parents critical and controlling as always”.
109In cross-examination, Dr L described the wife’s perception of her childhood as having felt left to her own devices, having missed out on care from her parents and feeling unable to ask for that care. She said that the wife’s present perception of her relationship with her parents was that she found her father supportive and caring and that she had some difficulties in her relationship with her mother, who she felt was not empathetic towards her. That was consistent with the observations of Dr F; that the wife had perceived difficulties in her relationship with her mother, who had high expectations of herself and others.
110When cross-examined, Mr Sargent denied that the wife’s account of her childhood accurately represented her views. He said that he had no idea why she would express those views and that her childhood was happy and secure, with sympathetic and caring parents. In his view, the wife had a relatively normal childhood in a loving family; he did not know how she might, while ill, perceive that history.
111The wife was sexually abused by a [family member] at a young age. She reported to Dr L that after the abuse was revealed, her family still expected her to socialise with the abuser. Reference was also made to the wife’s parents continuing to have on display in their home a photograph of the family member; prior to the separation, the husband was distressed by what he perceived as the parents’ lack of sensitivity towards the wife in that regard.
112Mr Sargent expressly denied the suggestion that he and his wife had expected the wife to socialise with the family member who had abused her, after the abuse had been revealed. He accepted that the husband’s evidence to the effect that a photograph of the family member had remained on display at his home was likely accurate, but explained that the photograph in question would have been a group photograph and only one of many in a large display of family photographs in the home. He acknowledged that the husband had raised that issue with him and that the ongoing display of the photograph could have been traumatising for the wife.
113Mrs Sargent expressed surprise that the wife would tell Dr L that she had any form of conflict with her, or that she perceived any lack of empathy from her. She said that the wife was “a perfect child and never gave us any trouble”. She acknowledged that the husband had spoken to her about the issue of a photograph of the family member remaining on display, but did not discern any lack of empathy in not removing the photograph. When asked whether she accepted that childhood abuse had contributed to the wife’s mental health issues, she said that she did not because the wife had told her it did not.
114It is clear that the wife’s relationship with her parents is not without difficulty from time to time. It is equally clear, however, that the wife’s parents have been and continue to be of enormous support to her. While she reports perceiving them as being controlling, I note that she reports the same perception of her relationship with the husband. Those perceptions, and any tensions in the relationship generally, must also be viewed in perspective; the wife is an only child, living with her parents after the breakdown of her marriage while struggling with mental health issues, wanting to spend more time with her children and yearning for independence.
115I conclude that the wife’s parents are sincere in their expressions of love and support for her and that they will continue to provide her with ongoing practical and emotional support to the best of their abilities.
116The relationship between the wife’s parents and the husband and his family is more problematic.
117The husband described difficulties in that relationship from the outset. He said that he tried to maintain a cordial relationship with the wife’s parents, but that he regarded Mr Sargent as an angry and intimidating person.
118The husband’s parents were very offended by a lengthy telephone conversation between Mrs Carter and Mr Sargent. Mrs Carter regarded Mr Sargent’s conduct during that conversation as aggressive and abusive, even making allowances for the stress and pain she agreed was being experienced by all concerned at the time. Both she and her husband described their relationship with the Sargent’s prior to that conversation as being cordial rather than close. Both acknowledged that an apology from Mr Sargent would go some way towards a recovery of a cordial working relationship. While Mr Sargent did not consider that he had been in any way abusive, he proffered the apology and expressed an understanding that all concerned had been under enormous stress.
119Adding considerably to the tension between the husband and the wife’s family was the husband’s allegation that Child A may have been sexually abused while at the grandparents’ home.
120The husband gave evidence that in the latter part of 2011, the wife’s parents had been significantly involved in the care of the children. He said that Child A began to suffer from “repeated urinary tract infections” requiring treatment and that he “began to wonder what was happening”. He described her as displaying anxiety, depression and fear of people she did not know. He said that she became clingy towards him and would complain of feeling sick in her stomach on returning from the home of the maternal grandparents. He described Child B as becoming agitated and hysterical at the prospect of staying at the grandparents’ home. At the time proceedings were commenced, the husband filed a Form 4 notice of abuse raising concerns in the following terms:
The Father is concerned that one or both of the children are being interfered with whilst they are in the care of the maternal grandparents and/or the Mother…
Following visits with the maternal grandparents and/or Mother within the last 12 months [Child A] has returned with an irritated vagina, and contracted several UTI’s which the Father sought medical treatment for.
The children have developed concerning behaviours, linked to their visits with the maternal grandparents and/or the Mother. [Child A] has become depressed and anxious and [Child B] agitated and aggressive.
The Father did not realise the extent of these concerns until a doctor told him that sufferers of Borderline Personality Disorder (which the Mother is) have a high risk of becoming abusers themselves of facilitating the abuse of others.
121The wife’s parents denied that the children had ever been at any risk in their care and denied that anything inappropriate had occurred.
122The husband was cross-examined in detail in relation to the issue. When asked whether he thought that the demands of the maternal grandparents for unrestricted time with the children were so that the children could continue to be abused, he gave an equivocal answer, saying that he became concerned when he found out that requests purportedly from the wife were in fact from her parents. When it was suggested to him that he had been unhappy with the report of the Department for Child Protection and Family Services in which the allegations were noted as being unsubstantiated, he described himself as having been “cautiously optimistic” while holding some concern that the Department might not have had access to documents produced under subpoena.
123The husband said that after the filing of the Form 4 notice, Child A’s urinary tract infections stopped and she did not suffer any further vaginal irritations. He said that the behavioural problems he had observed ceased after a little while.
124He said that he was now satisfied that the children were not at risk of sexual abuse in the care of the wife or her parents.
125When asked when he had become so satisfied, he responded that once the behavioural and physical problems stopped, he became satisfied that if there had been “anything happening” it had stopped. He acknowledged that the raising of the allegations had contributed to the difficulties in his relationship with the maternal grandparents, but did not regard them as the sole contributing factor.
126Counsel for the wife submitted in closing that I should make a conclusive finding that the children were not sexually abused, nor exposed to any risk of sexual abuse, while in the care of the wife and her parents.
127I decline to make such a finding, but would not wish my reasons for that to be misunderstood.
128While it is entirely understandable that parties to proceedings in this Court would seek to have their actions vindicated, their good names cleared, or the quality of their character upheld, that is not the purpose of these proceedings. The sole enquiry in the parenting proceedings is directed to finding the outcome which will serve the best interests of the children. The evidence in this case has, entirely properly, been predominantly directed to that prospective enquiry.
129I have no hesitation in finding that the children are at no risk of sexual abuse in the care of the wife, her parents, or either of them.
The primary considerations
130It is common ground that the children have close, loving and meaningful relationships with both parents and that it is to their benefit for those relationships continue. It is also common ground that the children should spend regular, and increasing, time with the wife given the importance to them of their relationship with her. The real dispute between the parties in that regard relates more to how that time is to be managed and whether in the particular circumstances of this family an attempt to define the parameters of that time through the making of orders is appropriate.
131Noting the findings above, other than in one respect, it is not necessary to frame orders such as to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I do not ignore the need to consider the physical and emotional safety of the children at times when the wife’s health issues are most acute. I note in that regard the statement by the husband to the family consultant during the conference on 11 August 2014 when he expressed the view that “99 per cent of the time [the wife] is no risk to the children but I worry about the 1 per cent when she may be incapable of making rational decisions”. While that statement was made at a particular point in time, when the wife had not been recently hospitalised, it captures fairly the husband’s ongoing concerns.
The additional considerations
132In his reports, Mr De Rooster outlined the clearly expressed views of the children that they would like to spend more time, and overnight time, with the wife. He noted Child A’s close bond and positive relationship with both parents and that she felt equally close to both of them. She missed the wife, and wanted to spend more time with her, while demonstrating an awareness that the wife is unwell at times, and acknowledging that sometimes that made her feel anxious.
133Mr De Rooster said that Child A was clear in her views and “consistently said or projected” that she wanted to have “even” time with each parent. He said:
She felt it was unfair that her time with her parents was not even and wanted it to be exactly the same.
134As observed earlier in these reasons, it is unfortunate that Mr De Rooster did not consider or explore in more detail the question of the extent to which Child A’s expressed views might be motivated by sympathy for her mother, or a sense of fairness, as distinct from a clear view as to what might best meet her own needs.
135Mr De Rooster said that Child B was clear in his view that he wanted to spend “some more time with the mother” but said that he seemed unclear as to just how much additional time he would like. He identified the reasons for Child B’s expressed views as being similar to those expressed by Child A.
136The ICL met with the children on 7 July 2016. She described them as presenting as “thoughtful, articulate, empathetic and funny…”. She told the parties that both children “clearly adore each of their parents and were able to identify a lot of positives…” about each of them.
137The ICL also told the parties that when speaking about the wife Child A became “quite teary” and was “sad about the limited time she has with her mum”, which she perceived to be decreasing. Child A demonstrated an appropriate awareness of her mother’s mental health problems and some of the issues arising from them.
138The ICL told the parties that Child B was also sad about the “limited time” he has with the wife and would like to spend more time with her. To her observation, Child B did not have any real understanding of the wife’s mental health issues and how they impact on the children’s time with her.
139Child A was born [in] 2004 and Child B was born [in] 2007. They are of an age and level of maturity where their wishes and views must be given some weight. Fortunately, the husband readily acknowledges both that the children would wish to spend more time with the wife and that, provided she is well, it is in their best interests to do so. At the end of his cross-examination, he had the following exchange with me:
[HIS HONOUR]: You said that you would like the children to see their mum more. Without suggesting that you move away in any way from the fundamentals of your case, if she’s well how often would you like that to be?
[HUSBAND]: Happy for anything up to and including half the time with the children.
140He confirmed that he did not have any current concern about the children spending two nights in succession with the wife.
141As already noted, the children both have close and loving relationships with their parents. They also have good relationships with their grandparents on both sides of the family and those relationships are important to them. Notwithstanding the difficulties between the two families, both pairs of grandparents have given considerable support to the parties and to the children in difficult and trying circumstances.
142Both parties have, to the best of their ability, taken the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with them and to communicate with them. Both have fulfilled their obligations to maintain the children, again to the best of their abilities.
143I am required to consider the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either parent or any other child or relevant person. It is common ground that the children’s circumstances will change and that subject only to her health they will spend more time with the wife than they do at present. The wife’s hope and plan is that she will live independently of her parents in the not too distant future; the professionals involved in the care of her mental health expressed cautious optimism that greater independence will be beneficial to her and that she will cope with it. That said, and notwithstanding the likely benefits, it must be acknowledged that there is a prospect that engaging in more work, living independently and having the children in her care more frequently will potentially place the wife under additional stress, with associated risk to her health and well-being.
144That is a matter appropriately taken into account in considering whether, if an order for structured time is made, it is appropriate for a cautious approach to be taken to any increase or progression in the children’s time with the wife.
145There are no relevant practical difficulties or expenses associated with the children spending time with either parent.
146Both parents have demonstrated their capacity to provide for the needs of the children, including their emotional and intellectual needs, within the constraints of the difficulties they themselves have experienced. Both are loving parents who are devoted to their children and determined to do their best for them. Both have an entirely appropriate attitude both to the children and to the responsibilities of parenthood.
147Having considered the matters set out in s 60CC, it is appropriate to move to the matters which must be determined.
Parental responsibility
148By the conclusion of the trial, it was common ground that the statutory presumption of equal shared parental responsibility applies in this case.
149On the husband’s case, the presumption is rebutted by evidence which he would say leads to the conclusion that an order for equal shared parental responsibility is not in the best interests of the children. In particular, he contends that at times when she is severely unwell the wife is unable to adequately participate in parental decision-making and that the state of her health is by its nature unpredictable.
150In addressing that proposition, Senior Counsel for the husband argued that the legislative imperative for equal shared parental responsibility, and the accompanying requirement for joint decision-making in relation to major long-term issues regarding the children, presupposes that both parents are “continuously competent”.
151With due respect, I find nothing in the legislation which supports that contention.
152The legislative imperative for equal shared parental responsibility is grounded in the objects of Pt VII of the Act and the principles underlying it, as set out in s 60B.
153Most particularly, s 60B(1)(a) notes the object of the legislation to ensure that the best interests of children are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests. Section 60B(1)(d) notes that the object is to ensure that the best interests of children are met by ensuring that parents fulfil their duties and meet their responsibilities concerning the children’s care, welfare and development.
154The relevant underlying principles note the rights of children to know and be cared for by both their parents. They note also that parents jointly share duties and responsibilities concerning the care, welfare and development of their children, and should agree about their future parenting.
155The legislation expressly recognises the legal position that, subject to any order of a court, each of the parents of a child has parental responsibility for that child: s 61(c)(1).
156That in turn is consistent with the “additional object” of Pt VII to give effect to the Convention on the Rights of the Child adopted on 20 November 1989 in New York: s 60B(4).
157Article 5 of the Convention is in the following terms:
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
158Article 18(1) of the Convention is in the following terms:
States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
159It is against that background that s 61DA is expressed in mandatory terms; in the absence of the factors identified in s 61DA(2), when making a parenting order the court must apply a rebuttable presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility.
160The wording of the statutory presumption is not unimportant. The court is required not simply to presume that a certain order should be made, but to presume that equal shared parental responsibility is in the best interests of the child.
161While the presumption is rebuttable, it is rebutted only by evidence that “satisfies the court that it would not be in the best interests of the child” for his or her parents to have equal shared parental responsibility. The onus is clearly on the party seeking to displace the presumption.
162It is not contended on the part of the husband that the wife is unable to effectively participate in joint decision-making about the children when she is well. Indeed, his evidence was that when the wife is well the parties communicate effectively and respectfully with each other and that he would always consult with her appropriately at those times. His concerns were limited to periods when she is unwell.
163As already noted, the husband seeks to rebut the statutory presumption by reference to what he would say is the wife’s inability at times of severe ill health to effectively participate in joint decision-making about the children. He argues further that in those circumstances he would be hamstrung in the exercise of parental responsibility, to the detriment of the children.
164The medical and other evidence as to the wife’s decision-making capacity, even during periods of hospitalisation, does not support the husband’s contention.
165Ms R was asked by the ICL whether she held concerns about the wife’s capacity to make decisions for herself, or participate in decision-making about the children, during periods when she was an inpatient at the mental health clinic. Ms R said that in recent times she held no such concerns whatsoever, while acknowledging that in the early stages of her mental health issues some years ago, when suffering more acute symptoms, that judgement was more difficult.
166Dr L confirmed that the medication taken by the wife did not have side-effects that might compromise her capacity to care for herself or the children. When asked about the wife’s level of insight when unwell, she said that the wife works very hard at “pulling things together and appearing normal” and said that she had known her to be in hospital and really struggling, but still able to interact with the children appropriately.
[DR L]:I think she works really hard to… what she’s always had to do in her life is put on a really good front. So she’s very good at just pulling things together and appearing normal if she has to do that. So for example I’ve known her to be in hospital and really struggling but as I said watching her on skype with the children she comes across as an absolutely delightful child centred person who is able to just interact with them appropriately. It’s quite gorgeous to watch. So she is able to in spite of her difficulties – and many people who suffer from depression do this, many people who suffer from quite severe depression still continue to function in the work force and in their relationships and in life in general, depression is an incredibly common disorder and it often goes untreated for a variety of reasons and people just get on with it – so it’s possible for someone who is keen to actually do the right thing to mask the symptoms of depression and parent effectively.
[ICL]:Do you think that then may increase risk to children? Say by way of example that if Nicole was to have access to her children on an unsupervised extent basis and she started to have increasing depressive symptoms that she might not seek help because he might be concerned about consequences?
[DR L]:No, no, no that is absolutely not the case, [Mrs Carter] has always sought help. She’s been exceptionally proactive and she’s a model patient. She’s probably my most compliant patient. She always seeks help.
167When asked specifically about the wife’s capacity to participate in decision-making about the children when she is unwell, Dr L said:
[ICL]:Based on your work with [the wife] do you have a view about how well she would be able to negotiate with [the husband] around issues involving the children?
[DR L]:I think she would have trouble because [the husband] seems to be incredibly – its only perception – the story I get is that he’s quite inflexible and rather random at times… whereas [the wife] is very staid and very reliable so my experience of her is that she is very consistent and regular and thoughtful to a fault, and it seems that she is being landed with, at times, difficult things to deal with.
[ICL]:One of the issues for all parents is around constructive discussion and joint decision making for their children. We know that [the wife] has had multiple admissions to hospital and for often very lengthy periods of time, do you have a view about [the wife]’s ability to participate in that decision making when she is not well. So by that I mean when she is admitted into hospital.
[DR L]:Well a number of the admissions have been for medication changes and things like that and she at times has felt quite overwhelmed but overall she is very sensible and very realistic about things… but obviously she can only work with her ex-husband if he’s capable of working with her.
[ICL]:Yes. I guess the concern that I’m putting to you is there’s a perception that if someone is in a mental health clinic for a period of time that they might not have sound mind, that’s why they’re there. That’s what I want you to comment on.
[DR L]:No, no, no, she’s extremely sound.
[ICL]:Even when she’s unwell?
[DR L]:She’s actually really sensible and works really hard to do things. I found her extremely proactive and extremely easy to work with, as I said, she’s my most - she’s probably my most - there might be one person who’s as compliant as she is, but she is extremely compliant in terms of my interactions with her.
168The husband’s own evidence is important in considering this issue. In relation to flexibility of arrangements for the wife to spend time with the children, he said that he would like her to give him “guidance as to how she is feeling” as he cannot always know. He said that he trusts her when she is well and that he could rely on the honesty and accuracy of her self-assessment both when she is well and when she is very unwell. His primary concern in that regard was to the honesty and accuracy of her self-assessment when she is in a phase of deteriorating mental health.
169He noted the wife’s improvement over time and said that he would be “more willing in the future to trust what she says about how she is feeling”. He agreed without hesitation that it was appropriate for the wife to be involved in decision-making about the children when she is well; his concerns were limited to periods when she is unwell.
170In my view, the answer to the concern posed by the husband lies in a proper consideration of the effect of an order for equal shared parental responsibility.
171Where an order provides that two or more persons are to share parental responsibility, and the exercise of that parental responsibility involves making a decision about a major long-term issue, the order is taken to require the decision to be made jointly. The order is also taken to require each party to consult the other in relation to the decision to be made about that major long-term issue and to make a genuine effort to come to a joint decision: s 65DAC. There is no equivalent provision requiring joint decision-making or consultation about decisions on issues that are not major long-term issues.
172The term “major long-term issues” is defined in s 4 of the Act to mean:
…issues about the care, welfare and development of the child of a long term nature and includes (but is not limited to) issues of that nature about:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
173The evidence does not support a conclusion that the wife’s mental health issues will inhibit her ability to meet her obligations under an order for equal shared parental responsibility, particularly when the nature of those obligations and the definition of “major long-term issues” are borne in mind.
174While there remains a real possibility that from time to time the wife’s health will deteriorate such that she requires a period of hospitalisation, the evidence does not suggest that even in those circumstances she will be consistently incapacitated from an ability to consult with the husband and make joint decisions about the children. Even if she were to be so incapacitated, the evidence does not support a conclusion that her incapacity would be of such duration as to render problematic a delay in the making of decisions about genuinely major long-term issues.
175As already noted, the children’s best interests are the paramount, but not the only, consideration in the making of a parenting order. Each child lives as a member of his or her own family and the child’s welfare and best interests are inextricably interwoven with that family. The interests of the parents, to the extent that they bear on the welfare of the child, must form part of the matrix of elements to be considered in determining the child’s best interests.
176The evidence clearly supports a conclusion that the wife’s mental health and well-being will be supported and enhanced by acknowledgement of, and respect for, the importance of her role as a parent.
177In his submissions, Senior Counsel for the husband cautioned against decision-making influenced by sentiment, sympathy for the wife or unfounded optimism. Those factors have not influenced the conclusion I have drawn. The improvement and maintenance of the wife’s mental health and well-being can only be to the benefit of the children in circumstances where it is common ground that they love her dearly and want to spend more time with her.
178I conclude that the evidence does not support the proposition that it is not in the children’s best interests for the parties to have equal shared parental responsibility. The statutory presumption is accordingly not rebutted and I propose to make an order for equal shared parental responsibility.
179As that order is to be made, the considerations mandated by s 61DA must be addressed.
Consideration of equal time, or substantial and significant time, and what parenting orders are proper in all the circumstances
180The proposals of the parties in relation to the time the children are to spend with the wife are already outlined earlier in these reasons.
181The minute of orders proposed by the ICL provide that the children initially spend time with the wife during school term on alternate weekends from after school Friday until the commencement of school on Monday and overnight on one occasion in the middle of the intervening week; subject to the wife complying with certain conditions designed to ensure that the husband is kept informed about any deterioration in her mental health. It was proposed that the children’s time with the wife extend to the Tuesday on alternate weekends commencing in the second half of this year.
182The ICL then proposed that from the commencement of the 2018 school year the children live with each parent on an equal basis during school term “on a fortnightly 2-2-5-5 roster” structured in the following manner:
(a)With the Respondent Mother from immediately after school on Monday, or 9.00 am if Monday is a non-school day, until the conclusion of school on Wednesday;
(b)With the Applicant Father from the conclusion of school on Wednesday until the commencement of school on Friday, or 3.00 pm if Friday is a non-school day;
(c)With the Respondent Mother from immediately after school on Friday, or 3.00 pm if Friday is a non-school day, until the commencement of school the following Wednesday;
(d)With the Applicant Father from immediately after school on Wednesday, until the commencement of school on Monday, or 9.00 am if Monday is a non-school day.
183Similarly, the ICL proposed a gradual progression in the children’s time to be spent with the wife during school holidays, moving to a week about arrangement in the summer holidays at the end of 2017.
184Further orders were proposed in relation to special occasions and the like. Given the fundamental difference in approach between the parties as to the need for any orders at all in relation to the children’s time with the wife, those particular matters were not the subject of any evidence or submissions.
185Consistent with the views I have expressed in relation to the issue of parental responsibility, I find that structured orders providing for the children to spend time with the wife are appropriate. I note that my finding in that regard is consistent with the strongly expressed opinion of the Single Expert Witness in response to questions from Senior Counsel for the husband. The need for flexibility and adaptability to any deterioration in the wife’s mental health is best addressed in the context of structured orders rather than by declining to make any orders at all. Such orders will, in my view, both ensure that the children spend more time with the wife by imposing the discipline of a structure, and support and enhance the wife’s ability to contribute to the children’s lives by assuring her that her parental role is respected.
186I reject the submission made on behalf of the husband that structured orders would not only be “set up to fail” but would expose the husband to an unwarranted risk of accusations that he had contravened the orders, and potential penalties arising from any application that might arise from such an accusation. The latter submission, with respect, disregards the fact that, on the husband’s case, any alleged contravention would occur with reasonable excuse.
187That is not to say, however, that the progression to equal time sought by the wife and supported by the ICL is necessarily in the children’s best interests. While the husband himself said that provided the wife is well, he would agree to the children spending “up to equal” time with her, I am conscious of the considerable uncertainty of her circumstances.
188The wife has for some time lived in circumstances providing her with daily support. She has lived with Dr F and Mr B and is now living in her parent’s home. While she hopes and plans in due course to live independently, and her parents are supportive of that, a component of her present proposals (and an element of the dispute between the parties) is the proposition that if she is unwell at times when the children are scheduled to be with her, they should simply remain in her household but in the care of her parents.
189That is not, in my view, an appropriate solution. Both sets of grandparents have important roles to play in the lives of these children but as grandparents, not as substitute parents. Both sets of grandparents have been supportive of the parties and their children, but also have their own lives to lead including, in the case of the wife’s parents at least, moderately frequent travel.
190In deciding what arrangement best meets the needs of the children, their desire and need to spend more time with the wife must be considered, as must their need for stability. The uncertainty in the wife’s future circumstances, not only in relation to her health, must be considered as must the desirability of the making of orders which will avoid further proceedings between the parties. Neither party sought that interim orders only be made; both are understandably and properly keen for the proceedings to be concluded.
191I do not know for how long the wife will continue living with her parents. I do not know for how long the progress she has recently made, and the benefit she has gained from increased engagement and employment, will continue or for that matter how much further it might continue to progress. I do not know when the wife might move into independent accommodation, what the circumstances of that independence might be, or how well she will manage the potential additional stresses of independent living, additional employment and more time with the children. It is, of course, hoped by all that she will thrive, but the possibility that she may not cannot be ignored.
(ii)in week two, from the conclusion of school each Tuesday until the commencement of school on Wednesday;
(b)thereafter, in a fortnightly cycle as follows:
(i)in week one, from immediately after school on Friday until the commencement of school on Tuesday; and
(ii)in week two, from the conclusion of school each Tuesday until the commencement of school on Wednesday.
4.The children live with the Respondent during school holidays as follows:
(a)in the July 2017 school holidays, from immediately after school on the day that school concludes for the term until 5.00 pm the following Tuesday;
(b)in the September/October 2017 school holidays, from immediately after school on the day that school concludes for the term until 5.00 pm the following Wednesday;
(c)commencing in 2018, for one half of each of the term school holidays at the end of Terms 1, 2 and 3 each year, as agreed between the parties and if agreement cannot be reached, for the second week during the April and September/October holidays each year, and for the first week of the July holidays each year; and
(d)commencing at the end of the 2017 school year, on a week about basis during the December/January school holidays, commencing at 3.30 pm on the Friday of the week that school concludes for the year until 5.00 pm the following Friday in 2017 and each alternate year thereafter, and commencing at 5.00 pm on the second Friday of the holidays in 2018 and each alternate year thereafter.
5.The children live with the Applicant at all other times.
6.The time that the parties spend with the children pursuant to paragraphs 3, 4 and 5 of these orders be suspended on the following occasions and in the following terms:
(a)Birthdays:
(i)in the event that the Applicant’s birthday falls during a time when the children are in the care of the Respondent, then the Respondent’s usual time shall be suspended so that the children spend time with him from 9.00 am until 8.00 pm in the event of a non-school day or, from the conclusion of school until 8.00 pm on a school day;
(ii)in the event that the Respondent’s birthday falls during a time when the children are in the care of the Applicant, then the Applicant’s usual time shall be suspended so that the children spend time with her from 9.00 am until 8.00 pm on the Respondent’s birthday in the event of a non-school day or, from the conclusion of school until 8.00 pm on a school day; and
(iii)where the children’s birthdays occur on a weekend or during school holidays, both children spend time with the parent that they are not already spending time with on that day from 2.30 pm until 8.00 pm;
(b)Father’s Day:
(i)if the children are not already spending time with the Applicant then from 9.00 am until 8.00 pm on Father’s Day;
(c)Mother’s Day:
(i)if the children are not already spending time with the Respondent then from 9.00 am until 8.00 pm on Mother’s Day;
(d)Christmas:
(i)commencing in 2017 and each alternate year thereafter, the children spend time with the Respondent from 2.30 pm Christmas Eve until 2.30 pm Christmas Day, and with the Applicant from 2.30 pm Christmas Day until 8.00 pm Boxing Day; and
(ii)commencing in 2018 and each alternate year thereafter, the children spend time with the Applicant from 2.30 pm Christmas Eve until 2.30 pm Christmas Day, and with the Respondent from 2.30 pm Christmas Day until 8.00 pm on Boxing Day;
(e)Easter:
(i)commencing in 2017 and each alternate year thereafter, the children spend time with the Applicant from 2.30 pm Good Friday until 2.30 pm Easter Sunday;
(ii)commencing in 2018 and each alternate year thereafter, the children spend time with the Respondent from 2.30 pm Good Friday until 2.30 pm Easter Sunday; and
(iii)such other occasions as may be agreed between the parties and confirmed by each of them in writing.
7.Each party shall be at liberty to have telephone or FaceTime communication with the children between 6.00 pm and 6.30 pm every second day, when the children are spending time with the other party.
8.To facilitate telephone or FaceTime communication as per paragraph 7 above, the call is to be initiated by the party who does not have the children in his/her care, with the children being afforded privacy during the call.
9.In the event the children will not be available for telephone or Facetime communication as per paragraph 7 of these Orders, the party who has the children in his/her care is to notify the other party by way of text message and advise a time the children will be available to take the call.
10.The Respondent must:
(a)strictly adhere to her mental health care plan, including taking medication as prescribed by her treating psychiatrist, attending all scheduled appointments with her treating psychiatrist, and attending group or other therapies recommended by her treating psychiatrists;
(b)forthwith notify the Applicant of all admissions to hospital related to her mental health, including but not limited to, where medication reviews/adjustments are recommended; and
(c)provide the Applicant with a copy of her discharge summary within 28 hours of being discharged from hospital.
11.In the event the Respondent becomes an inpatient at [the mental health clinic], or a hospital providing psychiatric care to her for a period greater than 10 days, paragraphs 3 and 4 of these orders be suspended until two weeks after the Respondent has been discharged from the clinic or hospital and provided to the Applicant a copy of her discharge summary in accordance with paragraph 10(c) of these Orders.
12.The Respondent authorise, on a continuing basis, her treating psychiatrist to forthwith notify the Applicant of any concerns the treating psychiatrist may have about the Respondent’s ability to care for the children and keep them safe from harm, or such other information the treating psychiatrist considers necessary to safeguard the children’s health and welfare.
13.Save for periods of time covered by paragraph 11 of these orders, in the event either party is unable to care for the children for a period of longer than eight (8) hours, they are to provide the other party with the first option to care for the children during this time.
14.The parties be permitted to holiday with the children outside of the Perth Metropolitan area provided:
(a)each party will give the other as much notification as possible of their intention to holiday with the children out of the Perth Metropolitan area, and in any event will give not less than 28 days written notice of such intention; and
(b)each party will furnish to the other an accurate itinerary to include where the children will be travelling to and an address, and landline or mobile telephone number on which the children can be contacted.
15.Each party be at liberty to holiday with the children outside the Commonwealth of Australia, on one occasion every two (2) years, for a period of up to three (3) weeks provided:
(a)the travelling party gives no less than 3 months’ written notice of their intention to travel, which should include their proposed travel dates;
(b)the proposed travel periods do not include Christmas Eve through Boxing Day;
(c)no less than 7 days prior to the departure date, the non-travelling party is given a copy of an accurate itinerary to include where the children will be travelling to and an address, a landline or mobile phone number on which the children can be contacted and a copy of the children’s return airline tickets; and
(d)the children are made available for FaceTime, Skype or telephone communication with the non-travelling party no less than every three (3) days while they are away.
16.Both parties do authorise and keep authorised any school that the children shall attend, to provide to both parents:
(a)all copies of any reports or attendance records in relation to the children;
(b)any copies of any school photograph order forms;
(c)any written reports or any school counsellor or other reports that the school provides to parents in relation to the children; and
(d)notification of, special school events, including, but not limited to, assemblies, school concerts, sports days/carnivals, religious events, awards, presentations and excursions.
17.Both parties authorise all staff members at any school that the children shall attend, to discuss the children’s progress with both parents, and these Orders shall be deemed as the parent’s authorisation to any school to do so.
18.Both parties keep the other informed of their home address, landline and mobile telephone numbers and email address, for the purpose of discussing issues relating to the children, and forthwith notify the other party should any of these details change.
19.Each party keep the other promptly informed of any serious illness or serious medical issues with respect to the children that arise, and notify the other party as to the outcome of any medical or allied health appointments that take place, while the children are in their respective care.
20.Both parties ensure that the other party is provided with up to date details including their name, contact telephone number and address of:
(a)each medical professional, dentist or allied health professional who provides treatment to the children; and
(b)information about any extracurricular learning activities, including tutoring for the children.
21.The Applicant ensure that the Respondent is listed as an emergency contact and next of kin for the children on all official paperwork, including but not limited to school documentation and medical documentation pertaining to the children.
22.The parties each be restrained and an injunction is hereby granted restraining them from:
(a)denigrating or describing in negative terms, the other party and his or her partner, friends and family in the children’s presence or hearing; and
(b)allowing the children to remain in the hearing or presence of any person denigrating or describing in negative terms the other party and his or her partner, friend and family.
23.In the event the children are currently not attending [a mental health service in Perth], the parties take all steps necessary to facilitate both children attending therapeutic or group counselling with [a mental health service in Perth] or such other therapeutic work as recommended by that agency.
24.Both parties do all things reasonably required to ensure that they can both participate and be involved in any therapeutic counselling attended by the children with said participation to be requested and directed by the children’s therapist.
25.The Independent Children’s Lawyer be and is hereby discharged.
Financial orders
26.Within 60 days of the publication of these Orders, the parties each do all things and sign all documents necessary to place on the market for sale and sell [the Suburb A property], more particularly described as Lot [XX] on plan [XXXX], being the whole of the land comprised on certificate of title volume [XXXX] Folio [XXX] (“the home”).
27.For the purpose of the sale of the home pursuant to paragraph 26 of these Orders:
(a)the parties do all acts and things necessary to appoint real estate agent [Mr C] of [Real Estate Company A] to market and sell the home;
(b)the listing price of the home shall be as agreed between the parties, the parties to have regard to the recommendations of the appointed agent;
(c)any repair or maintenance work carried out at the home prior to the listing for sale shall be solely as recommended by the appointed agent, and undertaken and paid for by the Applicant;
(d)the home is to be first offered by the parties for sale by private treaty for a period of three calendar months from the date of appointment of the selling agent;
(e)in the event that the home is not the subject of an unconditional contract of sale within three months of the listing, the parties do all things necessary to instruct the listing agent to offer the home for sale by public auction with a reserve price as agreed between the parties, with the parties to have regard to the recommendations of the listing agent in relation to an appropriate reserve price; and
(f)in the event that the home is not the subject of an unconditional contract of sale within five months of the initial listing, the parties have liberty to apply in relation to the terms and conditions of sale upon providing the other party no less than 14 days prior written notice.
28.Upon settlement of sale of the home, the parties do all things necessary to disburse the proceeds of sale as follows:
(a)in payment of any agents fees, commissions and costs of sale;
(b)in adjustment of council rates and taxes due at settlement;
(c)in payment to the ANZ bank of the amount required to fully discharge the home loan secured against the home by mortgage [XXX XXX];
(d)in payment of 50 per cent of the balance then remaining to the Respondent; and
(e)in payment of the balance then remaining to the Applicant.
29.Forthwith upon settlement of sale of the home, the Applicant pay the Respondent the sum of $70,315.00, such sum to be adjusted by:
(a)reducing the sum by $50.00 for each $100.00 by which the proceeds of sale of the home remaining after the payment of the sums referred to in subparagraphs 28(a), (b) and (c) are less than $1,085,523.00; or
(b)increasing the sum by $50.00 for each $100.00 by which the proceeds of sale of the home remaining after the payment of the sums referred to in subparagraphs 28(a), (b) and (c) are more than $1,085,523.00.
30.Mercer Superannuation (Australia) Limited is the Trustee (“Trustee”) of the Mercer Super Trust, Virgin Money Super (“the Fund”).
31.The Applicant is a member of the Fund.
32.In accordance with section 90MT(4) of the Family Law Act 1975 (Cth) (“the Act”) a base amount of $150,000.00 is allocated to the Respondent out of the Applicant’s interest in the Fund.
33.In accordance with section 90MT(1)(a) of the Act:
(a)the Respondent (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“the Regulations”); and
(b)the entitlement of the Applicant in the Fund (or the entitlement of such other person who becomes entitled to receive a payment out of the Applicant’s superannuation interest) is correspondingly reduced by force of this Order.
34.The operative date for paragraphs 32 and 33 is four (4) business days from the date that a sealed copy of these orders is served on the Trustee under the Act and the Regulations.
35.The Trustee, having been afforded procedural fairness, pursuant to section 90MZ of the Act be bound to observe the Trustee obligations set out under the Act and the Regulations.
36.The Applicant be restrained and an injunction is hereby granted restraining him from requesting the Trustee in accordance with regulation 7A.06(2) of the Superannuation Industry (Supervision) Regulations 1994 (Cth) to rollover or transfer the transferable benefits to another superannuation fund.
37.The Trustee have liberty to apply in relation to the implementation of this Order.
38.Following an offer on the home becoming unconditional and prior to the settlement of the sale of the home, the parties do all things necessary to remove their share of the home contents from the home, with the Applicant to ensure the Respondent is given reasonable access to the home at a mutually convenient time to enable her to remove her share of the home contents.
39.Unless otherwise specified in these orders, the Applicant’s interest, if any, in the following, vest in the Respondent absolutely:
(a)the [Honda CR-V] motor vehicle registration number [XXX XXX] registered in the Respondent’s name;
(b)any shares in the Respondent’s sole name;
(c)chattels and person effects in the Respondent’s possession;
(d)the grand piano and violin;
(e)funds standing to the Respondent’s credit in any bank accounts held in her name; and
(f)any superannuation accrued or accruing to the Respondent’s benefit.
40.Unless otherwise specified in these orders, the Respondent’s interest, if any, in the following vest in the Applicant absolutely:
(a)the [Ford Mondeo] motor vehicle registration number [XXX XXX] registered in the Applicant’s name;
(b)any shares in the Applicant’s name;
(c)chattels and personal effects in the Applicant’s possession;
(d)[Company A];
(e)funds held in the joint bank mortgage offset account;
(f)funds standing to the Applicant’s credit in any bank accounts held in his sole name; and
(g)any superannuation accrued or accruing to the Applicant’s benefit.
41.The Respondent indemnify and keep the Applicant indemnified in relation to any liabilities in her name or obtained on her behalf, including all liabilities to his parents or either of them.
42.The Applicant indemnity and keep the Respondent indemnified in relation to any liabilities in his name or obtained on his behalf.
43.That unless otherwise specified in these Orders:
(a)each party be solely entitled to all other property (including choses in action) in the possession of that party as at the date of these Orders;
(b)each party forego any claims they might have to any superannuation benefits or entitlements belonging to or earned by the other and those benefits and entitlements vest in the party in whose name those entitlements have accrued;
(c)money standing to the credit of the parties in any bank account is to become the sole property of the holder of that account;
(d)insurance policies remain the sole property of the owner named therein; and
(e)each party be solely liable for and indemnify the other against any other liability encumbering any item of property to which that party is entitlement pursuant to these Orders.
44.The parties each do all acts and things reasonably requested by the other party to give effect to these orders.
45.The parties have liberty to apply in relation to the implementation of these orders.
46.All outstanding applications and responses be and are hereby dismissed.
47.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
48.In relation to material tendered as an exhibit into evidence in these proceedings and absent the filing of any Notice of Appeal:
(a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of Justice O’Brien at least 28 days, and no later than 42 days, from today’s date;
(b)all parties must contact the Chambers of Justice O’Brien to arrange the collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
I certify that the preceding [281] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
25/05/2017
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