Cryall and Peterman

[2007] FamCA 1583

FAMILY COURT OF AUSTRALIA

CRYALL & PETERMAN [2007] FamCA 1583

FAMILY LAW – CHILDREN – Live with – Spend  time with – Communicate with

Family Law Act 1975 (Cth)

APPLICANT: Ms Cryall

RESPONDENT: Mr Peterman

FILE NUMBER: SYC 5885 of 2007

DATE DELIVERED: 28 November 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Judicial Registrar Loughnan

HEARING DATE: 28 November 2007

PLACE HEARD Sydney

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge

SOLICITOR FOR THE APPLICANT: Meyer Pigdon Lawyers

COUNSEL FOR THE RESPONDENT: Mr Maurice

SOLICITOR FOR THE RESPONDENT: Barkus Edwards  Doolan

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Maurice

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER: Legal Aid Commission
New South Wales

Orders

1. The parties are to file Terms of Settlement.

IT IS NOTED

that publication of this judgment under the pseudonym Cryall & Peterman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5885 of 2007

MS CRYALL  

Applicant

And

MR PETERMAN  

Respondent

REASONS FOR JUDGMENT

1. These are interim parenting proceedings in relation to D, M and T who are 12, 9 and 6 and there are some related proceedings. The wife and husband I think are 48 and 43. They lived together from 1990, married in 1993 and separated in April of this year.

2. The proceedings started earlier this year after separation. The matter came before me in September and I made some orders leaving in place an arrangement where the children were split.  The children were ordered to be represented.  A report was provided by Dr W. On 6 November 2007 Dr W's report rather shook the parties up and it resulted in some changes in the attitude of the parties and in the orders they sought. After hearing the matter on 6 November 2007, I ordered that the children live with the husband and spend time with the wife on a supervised basis every second Friday from 3 pm to 7 .30 pm, 9 till 7.30 pm on Saturdays and Sundays and Thursdays from 3 till 7.30.

3. Then there were a raft of other orders made and the matter was adjourned to Monday of this week on the basis that there may be issues about living arrangements following Monday. There were particular issues between the parties about the Christmas school holidays and there was a question about the occupation of the former matrimonial home in which the wife and children had been living after separation. The issues were about either exclusive occupation for one of the parties against the other or an about a nesting arrangement whereby the children would stay and the parties would come and go.  I ordered that there be further documents filed and served.

4. That was done and for the purpose of today each of the parties has filed an affidavit and they rely on an affidavit by Dr R who is the mother's treating consultant psychologist and the report of Dr W. They are the main documents in addition to the documents that I have read for the previous occasions.

5. On Monday, the matter was put over because I could not get to it and it was adjourned to today's date. I am grateful to the parties and their representatives for facilitating today. It has meant a change of advocate on behalf of the father and as I say I am grateful for that cooperation.  There was some discussion about the potential need for oral evidence from the two experts, from Dr R and then after he had heard what Dr R said in cross-examination, from Dr W. As it transpired, neither of them was going to be available at a time that fitted in with the proceedings today.  They would have been available around lunch time and arrangements have been made for the matter to be heard early this morning.

6. As to Dr R, he has a doctorate is psychiatry and he has been in private practice as a consultant psychologist since 1998.  He gives evidence as a treating specialist. There are provisions in the rules of Court in relation to somebody in that capacity being excused from the general regime set out in the rules which broadly speaking is in aid of avoiding adversarial experts and encouraging parties to cooperate in there being a single expert on an issue. A treating practitioner is exempt on the basis that their evidence is limited to the results of an examination or investigation or observation made, a description of any treatment carried out or recommended, expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of a treatment including a prognosis, r.15.41.

7. On Monday when the matter was briefly before me I ruled that Dr R's evidence was close enough, although I concede that the prognoses in this case coming as they do in response to a series of interlocutories administered by the wife's solicitor as the case developed in relation to each pressing issue, test the limits of the rule.  In my view, what has resulted is a series of unhelpful reports from Dr R and one can see when one reads the requests and this is a reflection of the whole tenure of the case, the requests and the reports are potentially contradictory. I think really what has happened is that Dr R has been put in a position that could be disadvantageous to his role working with the wife.  You can imagine that he has been trying to prepare reports that he did not think would themselves be harmful to his patient. The early requests sought opinions in relation to the wife's positive characteristics, her capacity to continue to undertake a parenting role. The later requests were seeking to elicit evidence about the adverse impact on the wife of certain events, some of them that had occurred, some of them potential.

8. The same problem has afflicted the husband's case.  For one half of his case he was critical of the wife's capacity and in the prosecution of his case about other issues, he is more bullish about her situation. For example, in his latest affidavit he opines that she is a good proposition for paid employment, saying: 

   I know of no reason why [the wife] is unable to re-enter the paid workforce.

9. Three children have been removed from their primary caregiver in these proceedings. That is an unusual thing to do and it has been on the basis of a very concerning report from Dr W, a very thoughtful, detailed report.  If the person described in Dr W's report is a good proposition for paid employment I would be very surprised.  As I say, the parties have been put to advancing the flip side of their arguments made just a couple of weeks ago. I do not think any of that is particularly helpful.

10. Nextly, Dr R is not able to give any comparative assistance in relation to the impact, for example, of exclusive occupation on the children. He gives his opinion about the wife but the children are also in vulnerable circumstances. It is apparent from Dr R’s reports that he has not always been able to answer the questions he was asked and I think that is probably because he is worried, quite rightly and sensibly, about his client. For example, he was asked :

    Taking into account her disclosed alcohol and marijuana use, do you have any concerns about her ability to function as a carer for her children?

    He says:

    There are a number of considerations in responding to this question. Firstly, [the wife] has acknowledged to her seeking psychological and psychotherapeutic treatment in January 2005, that her then levels of alcohol and drug usage was excessive and unhealthy. Secondly, prior to this time and up until the acrimonious separation from her husband [the wife] appeared to fulfil her responsibilities as a carer of her children to the satisfaction of her estranged husband, numerous school authorities, family and friends. Thirdly, under the present stressful circumstances [the wife] acknowledges it is difficult to demonstrate her parenting skills and responsibility. To conclude that [the wife’s] history of drug and alcohol use and her present monitored and reduced usage directly impairs her present parenting capabilities and responsibilities would need to be questioned, given the number of assumptions and potentially biased indicators upon which such a conclusion would need to be based.  At this point of time I am more inclined to consider [the wife’s] long term positive parenting history albeit under stressful and strained circumstances and her pro active effort to reduce her alcohol and drug intake to base a response to this question.

11. He does not answer the question.  He has used a lot of words but none of them answer the question.  I think the summary of all that would be - he is a bit optimistic about it. He was asked:

    Please comment on any other matters that relate to her capacity to function and act as a caretaker for the children [T], [M] and [D] in the future?

    His answer:

    It is unfortunate to say the least -

    I think he means at the least  -

    that the children [T], [M] and [D] have been involved, on occasions actively, by both parents in unfolding events associated with the present proceeding.  A settled and stable environment and consistent care is central to the healthy development of the children. Under the present stressful and volatile conditions alternatives to direct reliable parent care would not serve the children well.

    No answer and as I say I think probably ‘good on him’.

12. I think he is trying to avoid being caught up in something that is inconsistent with his role, which is to try and help his patient. I think we have put him in a difficult position.  I am not being critical of anybody but I think we are trying to make a therapeutic expert do a job that he is not well suited to. In my view and this is really a matter for Dr W, and the lawyers, including the children's lawyer to think about, whether it would be better that Dr W have direct access to Dr R and that then Dr W filters the information, so we have just one expert giving us an answer on these things. Of course, where Dr R is asked to express an opinion about the children, he steps into difficult territory because he has not qualified himself to do that.

13. There is no technical problem about this evidence. These are proceedings under pt. VII and the exclusionary rules of evidence, including the rules in relation to opinion evidence are exempt unless the Court applies them. The definition of child related proceedings which has this benefit is capable of incorporating proceedings under s.114 which I think you would say are the proceedings that we are dealing with in relation to occupation of the home.  Further, you cannot by rule of Court make a binding rule of evidence in any event and that is because the Evidence Act overrides all but I think there is a little category of regulations passed after a certain date. In any event you cannot by rule of Court make any binding in-road into evidence, and of course that is obvious because the rules can be dispensed with. So, no harm done.

14. As to Dr R, he says that the wife self referred to him after what she described as trashing herself at a New Year's Eve party. The first appointment was in January 2005, long before separation.  The wife reported that she drank alcohol on a daily basis, regularly used marijuana, described her marital relationship as stressful and unhappy and she was investing her energies into maintaining the household involving herself in children's activities. She had 92 appointments with Dr R between January 2005 and August 2007.  As Mr Maurice noted in seeking to advance the stability of the wife, she and Dr R focused on stabilising her self image, self esteem, mood and lifestyle. Dr R referred her off to have a prescription for anti depressant medication and he observed an improvement in what he had initially identified as an adjustment disorder with depressed mood associated with features of borderline personality disorder. He saw an improvement in her self esteem, self image and a capacity to maintain psychological stability during an acrimonious separation, and an earnest effort to reduce her alcohol and drug use.

15. Dr R goes on to say that the wife has been adversely impacted by the orders made to limit her time with the children and she has been adversely impacted by the report of Dr W itself. It concerns the wife that Dr W reported without conferring with Dr R. Dr R echoed an underlying concern that he was addressing with her in therapy about the wife not having a voice and not being heard. Dr R said that the findings that I made on 6 November heightened her psychological distress and despair.  He says moving the children to the primary care of the husband left a substantial void in her life and placed her in a vulnerable position, not only due to a deterioration of her overall mental health but also to the dysfunctional nature of her relationship with her estranged husband.  He says that the wife has demonstrated a resilience in coping psychologically with a decision to place the children with their father but he says a decision to move the wife from her home would potentially have serious consequences to the wife's mental health and well being.  He opines it would compound the wife's multiple experiences of loss, endorse her sense of poor self worth, rekindle her feelings of mistrust and disillusionment with authority figures and amplify her present sense of shame associated with the public display of a personal history revealed through the proceedings. It would escalate her life stresses to levels which could severely compromise her present and future mental health and well being.

16. There has been no opportunity test Dr R and there is no comparative analysis because Dr R is not qualified to say anything about the relative impact on the children. As against that, Dr W says in almost as many words, that it would be better for the children if they lived in their home.  There is no mention of this issue in Dr W's report, even though at the end of his report he recommended that for the time being the children be with the father.  There is a letter from the independent children's lawyer to the parties' lawyers inter alia:

    I asked Dr [W] whether he had any views on the husband's sole occupation application. He indicated he did believe it would be better for the children to be in the matrimonial home.

    And that is obviously true.

17. The husband has gone into great detail about this. He raises the problems of living in the L apartment that he acquired after separation and which is close to the L home; the problems caused when his parents come to help him out; the problems with the children being crowded; the lack of facilities on the premises, no pool, no proper area for other recreation. He then raises the comparative benefits of the home. It is a very substantial home, tailored made for the parties and the children, wired for computer access for the children, plenty of accommodation, proper accommodation for his parents if they have to stay, educational computer software uniquely available on the premises and so on. It is his evidence that the children want to return to the home. I accept all of that and it is obviously so. It is important that the children have stability at this time and these children have had more on their plate than they should. However, stability is available from different sources. There is stability in the children being together, there is stability in their school and extracurricular activities. In addition, I accept that there would be stability in being in a home that they are familiar with. The real issue is the hierarchy of concerns. As is referred to in Dr R's report, the mother was left on watch in relation to these children for all these years without complaint from authorities or anybody else. It is Dr W's report that has really highlighted the situation that the parties have found themselves in. The report came as a shock to both of them. It has resulted in the parties changing their applications.

18. It is trite to say, if the parties could make a small improvement in their relationship that would probably better promote the best interests of the children and their prospects than whether they are to live at the L home or anywhere else. No doubt the parties are doing the best they can by that.

19. The husband's case is that the conduct of the wife is more a matter of volition than nature, more a matter of her wanting to make life difficult for him than it is a matter of illness. I do not think he is in a position to make that assessment.  Dr W does not say that and the thrust of the very serious orders I made on 6 November was that I do not accept that. If it was a matter of something that could be fixed as easily as correcting behaviour adopted voluntarily then I think we would have taken an entirely different approach to the matter. The fact that the wife had 92 appointments between 2005 and August of this year and that results in a very qualified report from Dr R as he works with the mother.  It is not a matter of scaremongering or whatever, it is just a question of a hierarchy of concern.

20. In my view the greater risks to the children at the moment are the risks associated with further things that impact on the mother's capacities. She has given evidence in previous affidavits about the feelings of humiliation and so on that she has experienced. They are by no means as important as the issue of her children being with her full-time but I think it would be unhelpful at this stage to have her move out.  There are practical aspects too. The first day of the final trial is 29 February which is three months away. Normally we would allow some significant period for a party to move out so a lot of that time would be lost. I just do not think in all the circumstances that the children's best interests favour the order for exclusive occupation or the nesting arrangement proposed. The nesting arrangement takes a bit of cooperation and the parties do not have that.  You have problems with who is sleeping in my bed and personal possession and similar problems with a nesting arrangement. It would sit uncomfortably with the very restricted orders that were made on the last occasion.

21. That leaves the various little bits and pieces of parenting issues. They are mostly not justiciable issues. The first of them is the question of the children having two weeks with the mother leading up to Christmas time. The wife wanting the 10th to 24 December and the husband wanting the 8th to 22 December. It is not a justiciable issue.  In the course of submissions I proposed the 9th to the 23rd and there was no significant complaint.

22. There was to be an issue about supervision on flights to Western Australia but that is not pressed. The wife would have there being two lots of two week periods over the Christmas school holidays, rather than one.  Dr W's recommended one period of two weeks and that is what I will order.  There is an issue about telephone contact whether it is twice a week or every day, the wife wanting every day, the husband wanting twice a week. The parties do not enjoy a good relationship. There have been all manner of problems with the children taking up the cudgels for their parents. The idea is that a parent will touch base with the children.  My experience is that if the regime is too onerous then there might even be problems from the children's point of view.  The children's lawyer recommends twice a week and that is what I will order.

23. Nextly, there is an issue about an amelioration of an injunction in relation to the consumption of alcohol.  I think it is an injunction that I put in place on the first day I saw the matter – on 5 September.  The issue here is whether there is a need for the orders to be symmetrical, to apply equally to the parties in circumstances where there is great detail about the mother’s abuse of alcohol raised by Dr W, raised by Dr R and supported by the husband and I think a lesser concern in relation to the husband's consumption.  There is no point in making orders just for the sake of them appearing to be fair in this instance.  They need to be practicable.  I am told, I have not looked at it, that the orders sought by the wife in relation to this issue were less restrictive than those I made. In the circumstances I will reduce the current order insofar as it relates to the husband.  I will make the order in terms of the wife's original application.

1. Nextly, there is an issue about attending events. There is an agreement about certain events but the wife seeks an order in terms of para.3 of her minute which adds the device:

   And the wife be at liberty to attend with the children unsupervised in the event of -

   I think that is a recipe for disaster. I am happy to make that order insofar as it deals with the specific events agreed and I do not have any reason to believe the parties will not be able to agree on those things in the future. However, I am not going to make an order that detracts from the integrity of the arrangements that I have put in place, which are supervised.

2. Nextly was an issue about whether the nanny that is retained by the husband should be limited in description to a mature woman.  There is no issue about the person being female.  The concern of the mother is obvious and she does not want a 19 year person in that role but I have no reason to believe that 19 year old people are going to be qualified to undertake the role. I will leave the restriction to the nanny being female.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate

Date:  17 January 2008