Chatwin and Eales
[2007] FamCA 816
•14 August 2007
FAMILY COURT OF AUSTRALIA
| CHATWIN & EALES | [2007] FamCA 816 |
| FAMILY LAW - CHILDREN - With whom a child lives - With whom a child spends time - Relocation |
| APPLICANT: | MS CHATWIN |
| RESPONDENT: | MR EALES |
| INDEPENDENT CHILDREN’S LAWYER: | Justin Dowd |
| FILE NUMBER: | PAF | 1840 | of | 2003 |
| DATE DELIVERED: | 14 August 2007 |
| PLACE DELIVERED: | Parramatta |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 7,8,9,10 May 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Cleary |
| SOLICITOR FOR THE APPLICANT: | VJ Roles |
| COUNSEL FOR THE RESPONDENT: | Mrs O'Connor |
| SOLICITOR FOR THE RESPONDENT: | Brian Samuels & Associates |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Ms Reynolds |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Watts McCray Lawyers |
Orders
I make the following orders:
That all existing orders in relation to the child J born in March 2002 (‘[J]’) be discharged.
That the parties have equal shared parental responsibility for the child.
3.1 That the orders made herein on 5 July 2006 continue until the mother relocates to the NSW Riverina area.
3.2That the parties be at liberty to vary the changeover point and/or time by agreement between them.
That, from the time of the mother’s relocation to the Riverina area the child will live with the father at all times other than the following, when he will live with the mother:
4.1For the first weekend of each month from about 6:00pm Friday until about 5:00pm Sunday.
4.2For a period of 7 days during the autumn, winter and spring school holidays from about 12noon on the first Saturday of the school holidays until about 12noon on the middle Sunday.
4.3In odd-numbered years, from about 5:00pm on 23 December for a period of 14 days until about 12noon on the 14th day.
4.4In eve-numbered years, from about 12noon on 3 January for a period of 14 days until about 12noon on the 14th day.
4.5At all other times as agreed between the parties.
4.6If the mother so chooses, on one other weekend per month to be nominated by her 14 days in advance, excluding the Fathers Day weekend, from about 5:00pm Friday to about 5:00pm Sunday; such time to be spent in Sydney.
To facilitate the child moving between households in orders 4.1 to 4.5 herein, the mother shall:
5.1Book and pay for tickets and do all things necessary to ensure that he is booked on the flights which are scheduled to depart the Riverina area and Sydney respectively at the times which are nearest in proximity to the times specified in order 3; and
5.2Provide a flight itinerary to the father by ordinary pre-paid post not less than 14 days prior to travel; and
5.3Advise the father by SMS message of the airline and flight numbers for travel between the Riverina area and Sydney and Sydney and the Riverina area; and
5.4Collect the child at the Riverina area airport at the commencement of all periods of time with her in accordance with these orders and deliver him to the Riverina area airport at the conclusion thereof, after the expiration of order 4.6.
5.5Telephone or SMS message the father within 10 minutes of collecting the child and advise him of his safe arrival.
5.6Accompany the child on all flights between Sydney and Riverina area until he attains the age of 7 years.
To facilitate the child moving between households in orders 4.1 to 4.5 the father shall:
6.1Deliver the child to and collect him from Sydney airport at the commencement and conclusion of all periods of time with the mother in accordance with these orders.
6.2Telephone the mother within 10 minutes of collecting the child and advise her of his safe arrival.
The father has responsibility for decisions as to the child’s day to day care welfare and development during periods when he is living with him and the mother has that responsibility at all other times.
Each party shall ensure the other party is kept informed of:
8.1Any medical problems or illnesses suffered by the child while in that party’s care.
8.2 Any medication that has been prescribed for the child.
8.3 Any school or religious functions which the child is to attend.
8.4 Any other major matter relevant to the child’s welfare.
Each party shall advise the other party and keep the other party advised of their current mobile telephone numbers and advise the other party of any changes to these details within seven days of such change occurring.
The father shall give all necessary authorities to enable the mother to:
10.1Obtain copies of school reports, newsletters and photographs of the child.
10.2Obtain any information which she may reasonably request from the child’s teachers or school principal.
10.3Obtain any information which she may reasonably request from any treating health professional of the child.
In the event of the child being hospitalised or receiving medical attention for a serious illness, the parent spending time with the child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAF 1840 of 2003
| MS CHATWIN |
Applicant
And
| MR EALES |
Respondent
REASONS FOR JUDGMENT
THE PROCEEDINGS
Mr Eales, who is 40, and Ms Chatwin, who is 26, are the parents of a son, born in March 2002 and now 5 years old. The parents began to live together in August 1999 and separated on 15 October 2002. On that date, police officers attended an incident at their home. The father was charged with an assault of the mother, to which he pleaded guilty and received a section 10 order.
The incident between parties at the time of their separation seemed to be characteristic of their volatile relationship. They both used marijuana frequently while they lived together. The effects of this drug may well have been a contributing factor.
When the child was born the parties lived in rented accommodation in the northern beaches area of Sydney. Approximately 6 months after the birth, the mother began to work in her father’s business and the father assumed the care of the child.
After the separation the child lived with his father and spent time with his mother, as they arranged. Interim orders were made in the Federal Magistrates Court on 21 March 2003, which provided that the child live with his mother from 6:00pm on Sunday until 6:00pm on Wednesday in each week and with his father at all other times.
On 10 April 2003 these orders were discharged by consent. Fresh interim orders were made, also by consent, which provided that the child live with his mother from 9:00am on Monday until 6:00pm on Tuesday each week and otherwise with his father.
On 8 December 2003 there was an altercation involving the mother, the father and the maternal grandmother. The child was present and, most unfortunately, was pulled from one participant in the fracas to the other. The father was charged with assault following this incident. He was acquitted after a defended hearing.
In December 2003 the mother began a relationship with Mr G and moved from Sydney to live with him in the NSW Southern Highlands. From that point she did not spend time with the child in accordance with the orders of 10 April 2003.
On 23 February 2004 the mother failed to return the child after a period of time spent with her. The father obtained location and recovery orders on 5 March 2004. The child was returned to him by police on 6 March 2004.
On 27 April 2004 final parenting orders were made by consent. These orders provided that the child live with his mother from 8:00am on the first Monday of each month until 6:00pm on the second Tuesday and from 8:00am on the third Monday in each month until 6:00pm on the following day. Otherwise, it was ordered that the child live with his father. There was a notation that the parties intended to renegotiate parenting arrangements in December 2006, prior to the child commencing school in January 2007.
On 10 June 2004 the mother was admitted voluntarily to a psychiatric unit at a local Hospital, the R Centre. She was discharged on 23 June 2004, with a prescription for risperidone (an anti-psychotic medication) and a referral to the regional Community Mental Health Team.
There was a breakdown in contact between the child and his mother after her discharge from the psychiatric unit. On 28 September 2004 interim orders were made by consent, which provided that the child live with his mother from 9:00am on Monday until 7:00pm on Friday in the first week of each month and that he live with his father at all other times.
Until about November 2004 the mother spent time with the child in accordance with the orders made on 28 September 2004. For various reasons there was then a break in contact for several months. The mother found herself in difficult personal circumstances and the father was in Queensland with the child between February and April 2005.
The mother’s relationship with Mr G began to deteriorate early in 2005 and ended in about November of that year. She said that he smoked considerable quantities of marijuana and was prone to mood swings. As well, he lived in a house which she considered to be substandard accommodation.
On 28 April 2005 the mother was admitted again to the R Centre, this time on a schedule pursuant to the Mental Health Act. She was discharged on 10 May 2005, again with a prescription for risperidone and a referral to the Community Health Team.
In February 2006 the mother met Mr C while undertaking studies at the local TAFE. Mr C is a teacher. He is 58 years old and has been a widower since 2003.
In May 2006 the mother moved into Mr C’s home in the NSW Southern Tablelands district. They have a platonic relationship and provide support and friendship to each other.
On 5 July 2006 the Independent Child’s Lawyer applied for orders to the effect that the child live with each of his parents on a week-about basis. Essentially, this application was based on the contents of a report dated 3 July 2006 by the court-appointed expert Dr P. I made the orders sought by the Independent Child’s Lawyer, with the consent of the mother and over the objection of the father.
In 2006 the mother successfully completed her studies at the local TAFE. She is now enrolled in a Science course at a New South Wales University. She hopes to transfer to a health practitioner course in 2008. This course is conducted at the regional campus of the University.
The mother proposes to move to the NSW Riverina region from the Southern tablelands area at the end of 2007. For the remainder of this year she will study subjects in the Science course by Distance Education. If she is not accepted into the health practitioner course in 2008, she will re-apply in 2009. In that event, she will study science full-time in 2008.
THE PROPOSALS OF THE PARTIES
The Applicant Mother
The mother proposed that, until the end of 2007, the child would live with her in Mr C’s home in the Southern Tablelands district. He would spend time with his father from 10:00am on Friday until 12noon on Monday in each alternate week and for one week during the October school holidays.
The mother and child would relocate to the Riverina area on a date after 1 November 2007. The child would then spend time with his father for one weekend per month and for one week during the Terms 1, 2, and 3 school holidays. Christmas holiday time would be for two weeks from 23 December in odd-numbered years and from 3 January in even numbered years.
In 2007 changeovers would take place at a Post Office in the Southern Tablelands area and at W Shopping Centre, at the commencement and conclusion respectively of the child’s periods of time with his father. After the relocation to the Riverina area the child would travel by air, at her expense, to spend time with his father in Sydney. The mother also proposed one additional weekend per month in the Riverina area, at a time to be nominated by the father and at his expense.
The Respondent Father
The father proposed that the child should continue to live with him in Sydney. Until he starts school he would spend time with his mother once per month, from 5:00pm on the third Friday until 9:00am on the Saturday of the following week. When he commences kindergarten the child would spend one weekend per month and half of all school holidays with his mother in the Riverina area. The father also proposed additional time in Sydney, provided that the mother gives him reasonable notice.
The Independent Child’s Lawyer
The Independent Child’s Lawyer supported the position of the mother. In summary, his proposal was that the child live with his mother and spend three nights per fortnight with his father in Sydney until the relocation to the Riverina area. From that point, the child would spend time with his father in accordance with the proposal of the mother.
THE EVIDENCE AND WITNESSES
The applicant mother relied on affidavits sworn by herself, her parents, her friend and current landlord Mr C, and a psychiatrist, Dr S. All of these witnesses gave oral evidence.
In my view, the mother was not entirely candid as a witness. She said, and I accept, that her memory was vague as to certain incidents. In particular I accept that she has only a hazy recollection of the details of her two psychiatric admissions. I can understand that she would have no desire to read these hospital notes. Nonetheless, it seemed to me that her written evidence was slanted so as to paint herself as a victim and portray the father in a most unfavourable light.
The maternal grandparents both offered ongoing support to the mother and Dr the child. Admirably, the maternal grandfather offered to meet the cost of air travel for the child between the Riverina area and Sydney to enable him to spend time with his father.
There was a hint of tension in the relationship between the mother and her mother. In oral evidence the maternal grandmother said: “I am not one of her confidantes” and “She has been a very wilful girl all her life.” The mother added: “I have copped verbal abuse from her”. I accept, however, that the maternal grandmother has recently been very supportive of the mother, and that she will continue to offer her assistance. The maternal grandmother was very supportive during the mother’s psychiatric admission in 2005. On this occasion, she took the child to be cared for by his father in Sydney.
Mr C offered ongoing friendship and support to the mother. If necessary, he would provide her with financial assistance.
The mother lives in Mr C’s house in the Southern Tablelands area, as does the child when he is with her. Mr C and the mother chose not to disclose the address of the premises, saying that they fear abuse and harassment from the father. Having heard the evidence and observed the demeanour of the father, I can understand their position. It may be, however, that Mr C has become involved in the proceedings and been a little confrontational with the father on occasions.
Dr S is a psychiatrist who saw the mother several times between September 2005 and April 2006. He prepared a report dated 20 April 2006, which described in some detail the mother’s difficult life history. Dr S noted “a great deal of conflict and animosity” between the mother and her then partner, Mr G, who attended her first appointment with him.
In his report Dr S summarised his prognosis for the mother as follows:
“She is insightful, empathetic and genuinely concerned for the welfare of her child and his future. Currently she is attending [the local TAFE] and is making plans for her professional future.
Her prognosis is a healthy one and as stated previously there is no longer any remaining evidence of the previous stress-induced psychotic episodes which were provoked and precipitated by the extreme adverse life events that she experienced prior to hospital admission. She neither requires nor takes any medication.”
The respondent father relied on affidavits sworn by himself, his parents, his friend and flatmate Mr A and a psychiatrist, Dr D. All of these witnesses gave oral evidence.
The paternal grandparents offered ongoing support to the father and the child. They separated some time ago but remain on friendly terms and participate in family occasions together. It is a pity that their son and the mother have been unable to emulate their example.
Mr A has known both parties for several years. He and the father have shared rental accommodation since October 2005. Mr A looks after the child on alternate Thursdays, when the father is at work.
Dr D saw the father pursuant to orders made by consent on 13 March 2007. In summary, these orders required him to attend upon a psychiatrist and follow all recommendations for treatment. Presumably, the intention of these orders was to address concerns raised by Dr P as to the father’s personality and the nature of his relationship with the child.
Dr D assessed that the father suffers from no psychiatric illness. In his opinion, “perhaps there was some slight paranoia from his heavy use of marijuana”. He reported as follows:
“[The father] appears to have some paranoid, narcissistic and anti-social traits as characterised by his suspicious nature, perhaps over-inflated view of his own abilities and drug use. However I would not regard these traits to have reached a level of disorder. [The father] appears to have coped adequately caring for his son and supporting himself.”
Some of these unfortunate aspects of the father’s personality were exhibited quite clearly in the course of his oral evidence.
The court appointed expert, Dr P, prepared reports dated 3 July 2006 and 6 March 2007 and gave oral evidence. Dr P’s assessments and opinions assumed much significance in the proceedings and will be considered in some detail in these reasons.
Dr P expressed substantial concerns about the nature of the child’s relationship with his father, which he summarised in his second report as follows:
“[The father] is unable to see and to relate to [the child] as a separate individual, a child with developmental needs to reach his own potential. He provides for [the child] what he wants from life. [The child] is there to fulfil [the father’s] needs and lost potential and dreams.”
Dr P had no hesitation in recommending that the child live primarily with his mother. For reasons which appear below, and with respect to Dr P, I am not convinced that the outcome of these proceedings is so clear cut.
APPROACH TO THESE PROCEEDINGS
The legislative provisions which govern the parenting issues are contained primarily in Part VII of the Family Law Act. The objects of this Part are set out in section 60B(1) and, in summary, are that the children’s best interests are met by:
· ensuring that children have the benefit of a meaningful involvement of both parents in their lives to the maximum extent, consistently with their best interests
· protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
· ensuring that children receive adequate and proper parenting to help them achieve their full potential
· ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are set out in section 60B(2) and include the following:
· children have a right to know and be cared for by each of their parents
· children have a right to spend time on a regular basis and communicate with both parents and other people significant to their care, welfare and development, for example, grandparents and other relatives
· parents should jointly share duties and responsibilities concerning the care, welfare and development of their children.
These principles are expressed to be subject to the best interests of children.
In deciding whether to make a particular parenting order the court must regard the child’s best interest as the paramount consideration: section 60CA. In determining what is in a child’s best interests, the court must have regard to the primary and additional considerations set out in section 60CC.
Section 61DA(1) obliges the court to apply a presumption of equal shared parental responsibility, when making a parenting order. This 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 child abuse or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility: section 61DA(4).
The presumption created by section 61DA relates to parental responsibility and not to the amount of time which a child spends with each parent. If there is an order for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for the child to spend equal time with each parent: section 65DAA(1). If there is an order for equal shared parental responsibility but the child is not to spend equal time with each parent, the court must consider whether it is in the best interests of the child, and reasonably practicable, for the child to spend substantial and significant time with each parent: section 65DAA(2).
THE PRIMARY CONSIDERATIONS
One of several difficult issues in this dispute is whether an ongoing relationship between the child and his father would be “meaningful” for the child. More than once, Dr P used the phrase “toxic to [the child’s] development” to describe the father/son relationship. The necessary inference is that Dr P considered that the father’s way of interacting with the child constitutes a form of psychological abuse and is highly detrimental to his best interests.
At the time of Dr P’s first report the child was 4 years old and had lived with his father for all but the first 7 months of his life. The child’s time with his mother was erratic between the separation in October 2002 and the interim orders of 5 July 2006.
Dr P noted several observations of the interaction between the father and the child, which were partly the basis of his adverse assessment of the father’s parental capacity. The father strongly disputed a number of these observations. I will now set out some examples of these conflicting versions of events. This list is by no means exhaustive and is not intended to be so.
Of his first observation session in May 2006 Dr P reported:
“[[The child]] related in an uncontained and oppositional manner…..” [The father] said:
“[The child] was not running amok – just playing with toys like any kid”.
Dr P continued:
“[The father] engaged me, telling me his story. [The child] was left to entertain himself. [The child] did so as if he was used to doing so.
As [the father] continued to tell his story in an increasingly preoccupied manner, [the child] became increasingly less contained. He demonstrated no constructive play and increasingly threw toys and furniture on the floor.”
The father said Dr P asked him to leave the room and, when he returned, he noticed that “there were toys and paper everywhere”.
Dr P reported that the child said: “no, Mum is bad, Daddy bash Mum”, when asked if he wanted to see his mother. The father said he did not hear the child make any such statement. It was not clear on the face of the report whether the child was alone with Dr P when he is said to have made this statement.
Dr P’s opinions and assessments as at mid-2006 were summarised in these terms:
“[The child] presented as an uncontained anxious child who functioned at a level younger than his stated age and who lacked social skills appropriate for his age.
He demonstrated an estranged and disturbed relationship with [his mother]. He demonstrated an oppositional relationship with [his father], a relationship reflected in his relationship with [his mother] and with myself.
[The mother] gives a history in which she demonstrates a fragility in herself and in her relationships. This fragility is likely to be an expression of her disrupted development and sexual assault. As is common in young people who have been sexually assaulted, they grow to have relationships with dominating and violent men. Within these relationships they often manifest psychiatric phenomenon or form a psychiatric illness.
[The mother] appears now to have learnt from this experience. She has found a supportive home in which to live and is developing her skills and strengths.
[The father] gives an unreliable history in which he paints an idealised development and a picture of a model dedicated functioning in a person who falls victim to others.
He expressed no awareness of his own struggle with life and relationships and gives himself no opportunity to help himself as he puts the responsibility of his problems and lack of success on to others. He is self absorbed.
[The father’s] way of functioning and relating is toxic to [the child’s] development. [The father] has created an environment in which [the child] is estranged from [his mother] and is underdeveloped and under socialised.”
Dr P recommended that the child spend equal time with each of his parents. He also suggested that he review the situation after 6 to 12 months of such an arrangement.
Dr P re-interviewed the parents and the child in February 2007 and prepared his second report. The week-about arrangement had then been in place for approximately 6 months, with an interruption when the child remained with his mother between 15 September and 6 October 2006. The father claimed that he could not afford to travel from a northern Sydney suburb to a regional city south west of Sydney to collect him on this occasion.
In the 2007 observations, Dr P once more formed adverse opinions of the father’s interaction with the child. Again, the father disputed Dr P’s version of a number of events which were said to have occurred during these interviews and observations. I now set out a number of examples, which are by no means intended to be an exhaustive list.
Dr P reported that the child drew pictures of himself, his father, his mother and “[Mr C]”, when seen with the father on 21 February 2007. He wrote his name correctly on the bottom of the page on which he drew these figures. He then wrote his name backwards, which caused the father to “comment in a distressed way”. The child then “cut the backwards spelled name off the bottom of the page”.
The father denied that he was distressed that the child had written his name backwards. He maintained that he simply said to the child “that’s good [Son] but you have written your name backwards. You have to write your name from left to right”, and demonstrated to the child how to write his name correctly.
The father agreed that he became very distressed at a later point in this observation session. He said that he left the room so that Dr P could speak to the child alone. When he returned he noticed that there were pieces of paper scattered around the room. He picked the papers up and put them into the garbage bin. Dr P asked him where was the page with the child’s name written backwards. The father looked through about 10 pieces of paper on Dr P’s table and could not find the incorrectly written name. He then asked Dr P where it was and, according to the father the following conversation took place:
“[Dr P]. “Don’t you think that after all you have been through you might be seeing things backwards?
[The father]. No, I know what I saw.
[Dr P]. Well it is not there, you must be seeing things.
The father then located the page with the incorrectly written name in the garbage bin and gave it to Dr P, who said “okay thanks for finding that”. The father said that, at that stage, he was in tears as he believed that Dr P had formed a clear bias against him. He said that he felt that Dr P was questioning his “sanity and integrity”.
Dr P was of the opinion that the father “sees [the child] as his child”. He reported that the father said to him:
“I feel like I have saved [my son] and I want him back. She is not working. Doing all this study and living so far away.”
The father denied that he said that he used the word “saved” and claimed that his words were: “it feels like I have raised [the child]”.
As at March 2007 Dr P expressed the following opinions:
“[The child] presented at this assessment as a different child. He was last seen in May when his uncontained anxious behaviour left him uncooperative for the assessment. He was behaving at a level younger than his stated age. On this occasion, 8 to 9 months later, his relating and functioning reflected a child of stated age and he was able to make a significant contribution to this assessment.
[The mother] demonstrated as a more settled and more confident individual. She has achieved well in her study. She is involved in counselling/therapy.
[The father] maintains a self-absorbed way of relating in which he blames the world, and specifically [the mother], for his own problems in life. He maintains a toxic way of relating to [the child] in which the above is communicated to [the child] overtly and covertly. He sees [the child] as the opportunity to be his potential self, grown up and a success ‘a star’. Within this he is not aware of [the child’s] individual needs for growth and development and so is unable to provide these needs.”
Dr P raised the very troubling possibility that the father may harm himself, the mother or the child. He reported:
“There is a possibility in an unclear piece of history with regard to seeking help of a fragility and a potential of harm to himself and so to [the mother] and/or [the child]. Although this is a concern, the level of potential leaves little if anything to be done to address it clinically, unless [the father] was able to involve himself in clinical help. This concern is heightened by further losses for [the father] in his life. Whatever happens with [the child’s] care now, the loss of [the child] is inevitable as [the child] continues to grow and separate. Unless [the child] sacrifices his independence and separateness for [his father’s] sake.”
It was never made clear to me what Dr P meant by “an unclear piece of history”.
The father strongly denied that there was any possibility that he would harm himself, the child or the mother. He said:
“I do not understand [Dr P’s] statements. I would never hurt [my child] or his mother or anyone else. I love life too much and I do not have any need or intention to harm myself.”
As far as I am aware, nothing in the father’s past would indicate a propensity for self-harm or homicidal inclinations toward other people. The proposals of both the mother and the Independent Child’s Lawyer contemplate an ongoing involvement of the father in the child’s life, albeit on a much reduced time basis. There was no suggestion that the child’s time with his father should be supervised. I thus conclude that neither the mother nor the Independent Child’s Lawyer share Dr P’s concerns in this regard.
THE ADDITIONAL CONSIDERATIONS
section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;
The child is now only 5 years old. No party submitted that any significant weight should be placed on his stated views.
The child has consistently stated a wish to continue to live with his father. In my view, that is hardly surprising given that he has lived with his father for most of his life. I appreciate that Dr P attached a more sinister explanation to the child’s expressed wish, that being the “toxicity” of the father/son relationship.
It is a matter of concern that the child told Dr P in February 2007 that he did not wish to see his mother. When asked the reason he stated: “I don’t like my mum”. During a subsequent interview with Dr P, the child said “I don’t like her and neither my dad does either. Because she is not my family. Not even part of my family. I have a decent family, a really decent family. They belong to my father. With lots of boys.”
I am satisfied that it is inappropriate to place any significant weight on the child’s expressed wish to continue to live with his father. Similarly, I attach no significant weight to his stated wish not to spend time with his mother.
section 60CC(3)(b): the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
I have referred already to much of Dr P’s evidence as to the nature of the child’s relationship with each of his parents. In his oral evidence Dr P said words to the effect:
“[The child] does not show any really strong attachment to either parent”
and
“His relationship with his father has got less strength than you would expect.”
It seems that the child has a good relationship with his four grandparents. The father’s parents and the mother’s parents obviously love him and will do whatever they can to advance his welfare.
The child also related well to Mr C during Dr P’s observations. Mr C is a teacher, who has had many years of experience in dealing with children.
section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother complained that the father has been unsupportive of the child’s relationship with her. Her primary affidavit could be construed, in part, as an attempt to portray the father as obstructive of her time with the child to the point of actively undermining their relationship.
On a closer examination of the evidence, however, I am satisfied that the mother cannot blame the father entirely, or even substantially, for the irregularity of her time with the child since the separation. For example, she chose to move from Sydney to the NSW Southern Highlands in December 2003, at a time when she was seeing the child every day by arrangement with the father. The distance between Sydney and the NSW Southern Highlands made this daily contact impossible. When asked why she opted to move from Sydney, the mother said: “I moved to have a change of life – things were not working out. I really can’t recall my exact thoughts”.
In the NSW Southern Highlands the mother lived with Mr G. This relationship was turbulent, to the extent that the mother complained even to the father that she was unhappy. In cross-examination the mother described Mr G as “kind of a bipolar person – one minute very caring and supportive but not all the time”. The maternal grandmother described Mr G in her oral evidence as “a very strange fellow”. Nonetheless, the relationship continued for over 2 years.
The mother described the relationship with Mr G to Dr P as “worse” than that with the father. She said: “[I] felt stupid and violated. His physical abuse. I feel sorry for [the father] and [Mr G]. Had me under their thumbs. I would never let it happen again”.
It seems that the mother and Mr G were reasonably heavy users of marijuana during their relationship. This conclusion can be drawn from hospital notes relating to her two psychiatric admissions in 2004 and 2005.
The mother was admitted as a voluntary psychiatric patient in regional NSW on 10 June 2004. The discharge summary dated 23 June 2004 described the “relevant findings on admission” as:
“dishevelled, dirty clothes, cooperative
minimal communication
not grossly psychotic
well orientated.”
The mother told the admitting medical practitioner that she used “3 to 4 cones per day” of marijuana.
Part of the discharge summary read as follows:
“very thought disordered and disorganised. Was started on risperidone increasing to 2 mg. Was dressed in white and at one stage refused to eat unless the food was white. Gradually improved, wearing a more variety of colours and eating again.”
On discharge the mother was prescribed risperidone and referred to the regional Community Mental Health Team. In cross-examination she admitted that she stopped taking her medication prior to her second admission on 27 April 2005.
On this occasion the mother was involuntarily admitted to the T Centre, after having been scheduled at a regional District Hospital. The Schedule, dated 27 April 2005, recorded that the attending medical officer formed the view that she required protection from self harm. He observed:
“Catatonic behaviour, unable to speak, fixed eye staring, crucifixion position on bed. Appears to be hallucinating.”
The mother was discharged on 10 May 2005, again with a prescription for risperidone and a referral to the community mental health team. At this stage she came under the care of Dr S.
In the midst of all of these difficulties, it is not surprising that there were breaks in contact between the child and his mother. In my opinion the father could hardly be blamed for being concerned about the child spending time with his mother in these circumstances. He admitted that he did not make the child available on some occasions and explained:
“I did hold him back a few times when [Mr G] and [the mother] were getting out of control.”
In my view, there have been occasions when the mother has demonstrated a lack of cooperation about contact changeovers. For example in about mid-2006 she refused to hand the child to Mr A, who had attended in place of the father. The mother had been acquainted with Mr A for 10 years and had a brief relationship with him. When asked the reason for her refusal, she admitted that the only basis was that she “told [the father] previously that he had to be there himself”.
Another example of the mother’s lack of cooperation was her refusal to agree to a variation of the changeover date from Friday to Sunday, following the orders of 5 July 2006. The father works only one day per week, which was Friday at that time. Despite this legitimate reason for the father to request the change, the mother refused to agree. The problem was solved when the father arranged to change his work day to Thursday.
On the other hand, the father has not been always cooperative in making the child available to his mother. For example, he has never delivered the child to the mother at a regional city south west of Sydney in accordance with the orders made on 5 July 2006. He was content to blame his financial situation and leave it to the mother to collect the child from a Sydney suburban Police Station or W Shopping Centre. In October 2005 the father was found to have contravened orders for the child to spend time with his mother.
section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The mother’s proposal involves very significant changes for the child. For most of his life he has lived with his father on the Northern Beaches of Sydney. The distance between the NSW Riverina area and Sydney would create real difficulties in the child’s spending time with his father. The child would also be placed a considerable distance away from his four grandparents.
I have real concerns that the mother’s current state of stability will be impaired if she moves from the Southern Tablelands area to the Riverina area. She would lose the day-to-day support of Mr C and the benefit of secure accommodation in his home. She would need to find alternate housing and settle into a whole new environment, without the day-to-day support of either her parents or Mr C. At the same time, she would commence a full-time university course.
In my opinion, this combination of circumstances would be highly likely to create stresses in the mother’s life. If her application succeeds, she would also have to cope with assuming full-time care of the child for the first time in his life. It seems to me that the mother has underestimated the pressure which she is likely to face, if she finds herself in that situation.
I cannot exclude or gloss over the possibility that the mother may suffer another psychotic episode while living in the Riverina area. I appreciate that she is adamant that there will be no further episodes and that she has no wish to be re-admitted to a psychiatric hospital. I understand her evidence that she no longer uses marijuana, which may have contributed to the previous psychotic episodes. She has been involved in abusive relationships. I can say only that I hope sincerely that these difficulties are behind the mother but I do not have that confidence.
There is a real, practical issue as to what would happen to the child if the mother were to suffer another psychotic episode, or any serious, sudden illness, while they are living in the Riverina area. The four grandparents would be hundreds of kilometres away in Sydney. Mr C would be closer in the Southern Tablelands area, but still some distance away. I will assume that Mr C will maintain his assistance to the mother in the event that she relocates to the Riverina area, although I cannot be sure that their supportive friendship will survive the move.
I appreciate that Dr S expressed the view:
“Her prognosis a healthy one and as stated previously there is no longer any remaining evidence of the previous stress-induced psychotic episodes which were provoked and precipitated by the extreme adverse life events that she experienced prior to hospital admission. She neither requires nor takes any medication.”
With respect to Dr S, he had not seen the mother for at least 13 months at the time when he gave his oral evidence. As well, he did not seem to have turned his mind to how she might cope in a completely new environment, with no support.
Dr P also expressed confidence that the mother has been able to put her past psychiatric difficulties behind her. He said:
“[The mother] has a past history of fragility. She has coped with this by finding an environment which is able to support her in developing her strengths and support her in making achievements in life. The benefit to her of this hard work is that she is now less likely to decompensate as she has in the past.”
Obviously, the mother’s proposal to move to the Riverina area would mean that she will lose the support network which she has established in the southern Tablelands area. She has no support network in the Riverina area.
In my view, the proposed relocation is a risky exercise in terms of the mother’s mental health. It is self-evident that this risk must flow on to the child if he is in her primary care.
section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
I have referred already to the practical difficulties and expense of the child’s being able to spend time with his father if he lives in the Riverina area with his mother. The converse is also true, in that there would be considerable difficulty in the child’s spending time with his mother in the Riverina area if he lives in Sydney with his father.
The child is now only 5 years old and, in my view, he would need to be accompanied on flights between the Riverina area and Sydney for at least the next couple of years. The mother did not seem to have turned her mind to the details of her proposal that the child travel between Sydney and the Southern Tablelands by plane.
I would anticipate resistance from the father to transporting the child between his home at the northern beaches area and Sydney airport. He has not been prepared to meet the mother at a regional city south west of Sydney for changeovers, in accordance with the orders of 5 July 2007. It may be that he would not trouble himself to travel to the airport to enable the child to see his mother in the Riverina area. He would probably blame his parlous financial circumstances or the unreliability of his car. Of course, there is a possibility that he would do this travel on a monthly basis despite his refusal to drive to the regional city south west of Sydney each week.
The maternal grandfather said that he would meet the cost of all necessary air travel, if the mother was living in the Riverina area. I accept his evidence in this regard, without question, but his generosity is only a partial solution to these problems.
section 60CC(3)(f): the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Much of the evidence relevant to these considerations has been canvassed already. In my view, neither the father nor the mother have demonstrated a great deal of insight into the child’s needs. They have both shown that they are capable of putting their needs ahead of those of their son.
I have referred already to the mother’s decision to move to the Southern Tablelands area in 2003, when an inevitable consequence was the loss of daily contact with the child. It seems to me that she made this move entirely because it suited her at the time. Similarly, she now proposes to relocate from the Southern Tablelands area to the Riverina area with the child to pursue tertiary studies. There is no doubt that her academic success to date and her career ambitions are admirable. The consequence for the child, however, would be a significant geographical separation from every member of his family except his mother.
The father’s lack of insight into the child’s needs was demonstrated by some of the statements he made in his oral evidence. For example he said:
“He has not suffered emotionally from not having enough time with his mother.”
When asked about a period when there was a break in contact between the child and his mother for some months, the father said:
“I don’t think [the child] realised he was not seeing his mother. He never said anything, he had all the love he needed and plenty of toys.”
section 60CC(3)(k): any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person
The parties have both shown that they are capable of engaging in acts of violence. There have been at least two incidents of violence between them, for which they each blamed the other.
On 15 October 2002 there was an altercation between the parties at their home. He admitted to “clipping [the mother] on the back of her head with an open hand”. The mother said: “I was covered in blood from scratches – it was a lot more than a clip on the head.”
Neither party’s account is consistent with the relevant COPS entry (exhibit 4). This report indicates that the father behaved quite unacceptably but, also, that the mother’s injuries were far less serious than she claimed. Ultimately, the father pleaded guilty to an unspecified criminal charge arising out of this incident and was given a section 10 bond.
There was an incident on 8 December 2003 which reflected no credit on either party. At a contact changeover they engaged in a verbal argument, which escalated into a physical confrontation. The father’s mother was present and she became involved. The mother admitted that she caused bruising to the paternal grandmother’s eye. I can only speculate about the effect on the child, who was being pulled between the three participants and saw the whole incident.
The father has also been involved in a physical confrontation with his brother in November 2005. He admitted that it was “a very heated argument” and that he “lost it”. He was charged with three counts of intimidation arising out of this altercation.
CONCLUSION
Neither the father nor the mother sought an order for sole parental responsibility. In my view, it would be in the child’s best interests that there is an order for equal shared parental responsibility. It seems to me that the only basis upon which the presumption could possibly be rebutted is that I accept that the child is being subjected to psychological abuse by his father. That premise rests almost entirely on an unqualified acceptance of the evidence of Dr P.
As I have said, the father took issue with some important observations noted and relied upon by Dr P. In addition he was extremely upset at the contents of Dr P’s first report and could be expected to be tense and anxious during the second series of observations. These matters lead me to be cautious in accepting Dr P’s conclusions in an unqualified way.
I have regard also to the fact that the father and the mother both attribute to the child’s negative statements about the other parent. Effectively, they both say that the other parent has influenced the child to make these statements. For example, the father deposed that the child said to him:
“We are going to throw a brick through your window.”
“Daddy is a baby.”
“You are a pest.”
“The police are going to get you.”
“You are wrecking my life.”
He asked:“Who said that?” and the child replied: “Mummy”.
The mother deposed that the child said to her:
“Movieworld is great. I’ve been to Movieworld 20 times.”
[“I think that you’ve been there once?”]
“Yeh but once I got rid of mum I go to Movieworld again.”
“You stop daddy and I going to Movieworld.”
“You stop daddy and I from going on holidays.”
“You have to give daddy’s money back that you took.”
I am mindful also of the evidence of Dr D as to the psychiatric state of the father. He noted some unfortunate features of the father’s personality but identified no psychiatric illness. Dr D did not see him with the child and, of course, made no comment at all about the nature of their relationship.
I also have regard to the father’s evidence that he has made overtures to the mother, seeking that they try to cooperate for the child’s sake. The mother did not deny that he has done so.
For all of these reasons, I have real reservations about accepting that Dr P’s evidence reaches the level of psychological abuse of the child by the father. Certainly, the expert evidence gives rise to concerns about his parental capacity, which I weigh with all other relevant considerations in reaching a decision as to what parenting orders are in the child’s best interests.
I thus form the view that the presumption for equal shared parental responsibility is not rebutted. In fact, there was no submission in support of a finding of rebuttal.
I am therefore required to consider whether the child should spend equal time or substantial and significant time with each of his parents. The mother’s proposed relocation to the Riverina area makes either of these prospects impossible, once the child starts school.
The mother’s intention to live in the Riverina area has the practical consequence that a choice must be made whether the child spends most of his time in that city with his mother or in Sydney with his father. There is simply no way to achieve any other result.
In my view, the essence of this decision involves a balancing of two principal considerations. The first is the personality of the father and the consequent defects in his parental capacity. The second is the risk involved in the mother’s firm proposal to relocate to the Riverina area. The balance is fine indeed but, ultimately, I conclude that the father’s proposal offers most advantages to the child’s best interests. In my view, life in the Riverina area with his mother carries too much risk to his stability.
I can see no reason why the child should not have the benefit of equal time with each of his parents until the mother moves to the Riverina area. Her evidence was that she will relocate after 1 November 2007. Thereafter, orders will be made for the child to spend time with his mother on the basis that she lives in the Riverina area and he is in Sydney with his father.
I certify that the preceding one hundred & sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson
Associate: dp
Date: 14 August 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CHATWIN & EALES
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Jurisdiction
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Duty of Care
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