DALLON & PATAU
[2008] FamCA 782
•16 September 2008
FAMILY COURT OF AUSTRALIA
| DALLON & PATAU | [2008] FamCA 782 |
| FAMILY LAW – CHILDREN – Parenting proceedings - 5 ½ year old child – evaluation of allegation mother suffering from mental illness and Borderline IQ – flawed diagnoses – various other findings consistent with the mother’s case – mother to have sole responsibility for decision about child’s schooling and otherwise shared parental responsibility, child to reside with mother, initial period of limited contact with father to allow settling in making the transition to mother’s care, followed by regular time in father’s care. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Dallon |
| RESPONDENT: | Ms Patau |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission NSW |
| FILE NUMBER: | SYC | 2652 | of | 2007 |
| DATE DELIVERED: | 16 September 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Moore J |
| HEARING DATE: | 16, 17, 18, 19, 20 & 23 June 2008 Written submissions received 27 June, 6 & 13 July 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Picker |
| SOLICITOR FOR THE APPLICANT: | Armstrong Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Christie |
| SOLICITOR FOR THE RESPONDENT: | Vaughan Zarb & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Boyle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission NSW |
Orders
1.All previous orders in relation to the child … born … February 2003 [‘the child’] are discharged.
2.Subject to order 3, the parents are to have equal shared parental responsibility for the child.
3.The mother is to have sole responsibility for making decisions about the school the child will attend and her education.
4.The mother is to advise the father in writing of any decisions about the school the child will attend, or major decisions about her education, and she is to request the school to provide to the father copies of all school reports and newsletters or similar publications made available to all parents.
5. The child is to live with her mother, operative forthwith.
6. The child is to spend time with her father as follows:
(A)from the date of these orders for a period of six (6) weeks:
(a)for 2 hours on each Saturday supervised at the Blacktown Children's Contact Centre or other agreed Contact Centre.
(B)thereafter, until the commencement of term 1 in the 2009 school year:
(b)each alternate weekend from 9am Saturday to 5pm Sunday or other times agreed in writing;
(c)each other week from after school Thursday until the start of school Friday;
(d)during the 2008/2009 Christmas school holidays from 9 am Saturday 10 January 2009 until 9 am Saturday 24 January 2009 and otherwise the father’s time is suspended for the duration of that school holiday period.
(C) from the commencement of term 1 in the 2009 school year:
(e) during school terms:
(i)each alternate weekend from after school Friday until the start of school Monday, commencing on the first weekend of each school term;
(ii)each other week from after school Thursday until the start of school Friday;
(f)during school holidays:
(iii)one half of each New South Wales school holiday period, being the first half in 2009 and each alternate year thereafter and the second half in 2010 and each alternate year thereafter;
(g)such other times as agreed by the parents in writing.
7.For the purpose of these orders, school holidays are deemed to commence on the last day of each school term and conclude on the first day of the following school term.
8.If the child is due to be with her mother on the Father's Day weekend, then she is to spend that weekend with her father instead of the following weekend which she is to spend with her mother.
9. If the child is due to be with her father on the Mother's Day weekend, then she is to spend that weekend with her mother instead of the following weekend which she is to shall spend with her father.
10.For the purpose of orders 6 (B)(b) and (c), if it is a non-school day periods of time which would ordinarily commence after school will commence at 3 pm and periods that would conclude at the start of school will conclude at 9 am.
11. From the commencement of school term 1 in 2009:
(i)on school days the father is to collect the child from school at the commencement of the designated time and return her to school at the conclusion of the designated time;
(ii)on non-school days the parents are to arrange for changeovers to occur at Blacktown Children's Contact Service or, if not available, at such other venue as the parents agree and failing agreement the father is to collect the child from and return the child to the front gate of the mother’s home.
12.Each parent is restrained and an injunction is hereby granted restraining them from making derogatory or critical remarks about the other parent or any member of the other parent’s family to the child or in the child’s presence or hearing.
13.Each parent and their servants and agents are restrained from removing or attempting to remove or causing or permitting the removal of the child … born … February 2003, female, from the Commonwealth of Australia and the Australian Federal Police are requested to give effect to these orders by maintaining the child’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia until further order.
IT IS NOTED that publication of this judgment under the pseudonym Dallon & Patau is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2652 of 2007
| MR DALLON |
Applicant
And
| MS PATAU |
Respondent
REASONS FOR JUDGMENT
Proceedings
Decisions are to be made about the parenting arrangements for the parties’ only child: their daughter, who is aged 5 years (dob …/2/03). An independent children’s lawyer (ICL) was appointed some time ago.
Their fundamental positions have not altered over time but the detail of the outcomes proposed are no longer to be found in the father’s application which instituted the proceedings on 16 April 2007 or in the mother’s response filed 21 May 2007. The ICL proposed orders at the end of the hearing, set out in exhibit 26, when the mother signified her support for orders in those terms subject to two additional orders noted at the outset of her counsel’s submissions. The father’s ultimate proposal is to be found in exhibit 4 as amended in the course of the hearing. Rather than record the detail here it is set out in a Schedule; for now it can merely be noted that decisions are required about an aspect of parental responsibility, where the child will live, the duration and circumstances in which she will spend time with her other parent, and how changeover is to be arranged.
Brief background
The father, Mr Dallon (46), was born in Iraq in 1961. He completed a Bachelors degree in Iraq and he served compulsory time in the Iraq army. He was a teacher before migrating to Australia in 1995. After his arrival he says he took several years to learn English and acquire some TAFE certificates and other diplomas; his degree in Iraq was not recognised here. As for his work history in Australia, he says he started his own company which was ‘just starting to take off’ when the child was born, but because of domestic ‘problems’ [to be discussed] he chose not to continue working and made looking after his wife and daughter his priority. However, that evidence is not without controversy; his wife says he never worked at any time throughout although he was involved in some activity to do with motor vehicles. He received a government benefit in the form of a disability carer’s pension from 2006 consequent upon the mother receiving a disability pension. But it is also a matter of controversy whether those benefits were the result of a ruse he devised to have her misdiagnosed by a psychiatrist [the mother’s case] or whether the entitlements were properly the result of her suffering mental illness and Borderline IQ requiring his constant oversight [as his case maintains]. At the time he swore his affidavit in May 2008 he had been planning for some months to return to full time work and he had had discussions with a number of companies about consulting work; however, at the time of the hearing he had commenced full time work with the public service. He lives in his parents’ home with one of his brothers and the child.
The mother, Ms Patau (31), was born in 1977 in Iraq where she undertook primary school education before coming to Australia with her family in 1998 or thereabouts. After her arrival she enrolled in courses at TAFE. She was not in paid work before the marriage or during the marriage. She did become entitled to receive a disability pension in 2006 but she contacted Centrelink and terminated that after separation. She has since undertaken a TAFE course in literacy and numeracy in English, she has done some work in her brother’s business, and she plans to do other studies and obtain employment in due course. She otherwise has responsibilities within the family home. She lives with her parents and two brothers.
The parents met in late 2001. Their courtship over the months to follow and their subsequent marriage in February 2002 appear to have had the support of both families although the families appear never to have been close or to have shared common interests. For the first two years or so they lived with the father’s family. Their daughter was born in February 2003 and the following year they moved out into rented premises of their own, initially at G and then at B. They separated in April 2007 after five years of marriage when the child was a little over four years of age.
On separation the mother left their home, taking the child with her, and she returned to live with her parents. There followed some discussions between the father and certain members of the mother’s family but the father did not see the child. He then instituted these proceedings and interim orders were made on 1 May 2007 placing the child in his care. While he returned with the child to live with his parents, he kept the rented premises at B for a time. In the meantime, the child has had regular contact with her mother in a supervised setting and for relatively limited duration, consistent with arrangements established by the 1 May interim orders.
Both parents have close connections with their family whose views on the parental dispute align with their own and the vast gap that divides them also divides their families.
Evidence
The father is competent in English, that is evident at the very least from his employment, but he gave his evidence through an interpreter. Of course it is understandable that anyone finding themselves in the unfamiliar setting of a legal system would want to present their case through their first language, but he did receive the questions in both English and Arabic. The substance of his evidence will be noted in due course. An interpreter was also available to those of his witnesses who required assistance.
Three members of his family gave evidence on his behalf. His mother, the paternal grandmother (66), outlines the family background. She and her husband have three sons [the father (the oldest), the child’s Uncle N and another son], two daughters [the child’s aunt W and another daughter], and there are a number of grandchildren. The child’s Uncle N, the father and the child live with her and her husband. She says her health has been poor in the past - in Iraq and Australia she suffered various medical conditions which required surgery – she monitors her health carefully and she is on a disability pension. She did not elaborate on any of this, but her seemingly robust appearance apparently belies underlying health problems. Her evidence goes to her observations of events during the time the parents lived in her home, after they moved out, and since their separation as well as to certain statements made to her by the child. Broadly expressed, it is all directed to establishing that the mother had an angry and aggressive disposition; at times her behaviour was violent and her language vulgar and offensive; she was incompetent and inattentive to the child; she physically hit the child, treated her roughly and on occasions threatened to do her harm; and early in the marriage she became concerned about the mother’s mental health after the mother reported ‘hearing voices’ in her head. It all stands in stark relief to her observations of her son’s gentle and loving care of his daughter and his devoted attention to the child.
His brother, the child’s Uncle N (43), is a carer for his parents with whom he lives for which he receives a government paid carer’s pension. He reports that ‘both (his) parents are on disability pensions and require assistance to get around, both to manage their domestic duties, attend on doctors and do their shopping.’ He is also a director of what he calls ‘[the father’s] company’. He also relates his observations and experiences of the mother’s aggressive and volatile attitude and her neglectful and incompetent care of the child. Again this contrasts with his observation of his brother’s calm and gentle manner and his brother’s efforts to model appropriate parental behaviour to assist the mother.
The child’s Aunt W, the father’s sister, is married with two children and lives with her husband and children independently of her parents. In her evidence she describes an encounter with the mother in June 2007 at a shopping centre. She alleges the mother screamed angrily at her, using ‘vulgar and offensive’ language, and attempted to assault her before her husband intervened. Her children were very upset by the encounter.
The father also called evidence from Dr J, a psychiatrist who was consulted by the mother from 29 September 2006 in circumstances to be elaborated later. His evidence is not on affidavit. In his report of the same date Dr J gave a diagnosis of depressive disorder with psychotic features with a differential diagnosis of schizophrenia or schizoaffective disorder combined with Borderline IQ. He later concluded a diagnosis of schizoaffective disorder and Borderline IQ. From the outset he prescribed anti-depressant and anti-psychotic medication which changed over time. He also supported the parents’ applications for a disability pension, carer’s pension and public housing. All up he saw the mother on 20 occasions before the last consultation in October 2006 when she came accompanied by her brother.
Turning to the mother’s evidence, she also had the assistance of an interpreter whom she relied on occasionally although she mostly received and answered what was asked of her in English. She gave her evidence with obvious understanding but, not unnaturally, not with the ease or facility of expression that command of a language brings. The substance of her evidence will be noted shortly. An interpreter was also available to assist her witnesses as required.
She called evidence from both of her parents, the maternal grandmother and the maternal grandfather (63). They have seven children and they live with their two sons, the child’s Uncle S and P, as well as the mother who is their 5th child. The maternal grandfather was the proprietor of a shop in Iraq but he is not in paid employment. He describes the family as always being close and mutually supportive. Both parents describe a change in their daughter after her marriage and a downward spiral of unhappiness. They portray a distant relationship with the father’s family and they say they came to see little of their daughter over time, a development they attribute to restrictions imposed by the father. The maternal grandmother says her daughter has no history of unusual behaviour, she became depressed after the marriage because of the way she was treated, and she asserts her daughter is a capable and loving mother. Her father’s evidence covers the events of June 2003 when his daughter returned to her own family with the child for a month after trouble at the Dallon home and it also covers events leading up to and after the separation. He maintains his daughter and granddaughter have his love and support and that of her brothers and sisters and their families.
The mother’s brother, the child’s Uncle S (35), is also a witness. He runs his own business and lives with his parents. His evidence touches upon his involvement in his sister’s circumstances, including his attendances at her home on more than one occasion in response to telephone calls from her, and to other related matters.
The mother also called evidence from Ms R, a psychologist and counsellor at a TAFE College where she commenced the literacy and numeracy in English course earlier this year. When she swore her affidavit in May, Ms R had seen the mother in counselling for around 20 hours. She describes the mother’s English as having improved. In her opinion the mother’s cognition, comprehension and memory all suggest average intelligence. She describes her as always punctual and groomed immaculately, with a good sense of humour, a warm and engaging manner, and possessing good communication skills. Ms R was not required for cross-examination and her evidence is accepted.
Dr T, the psychiatrist the mother consulted on 11 May 2007 shortly after the interim orders, conducted a psychiatric assessment. His assessment is at odds with the diagnosis by Dr J who saw the mother up until October the previous year but it does align with the opinions of Dr Q, a child and family psychiatrist who was appointed the single expert to report to the Court on certain matters.
Dr Q produced her first report in February 2008 after she had arranged for a further interview with the mother [whose family also attended] and in April she provided an addendum responding to questions put to her. She elaborated on her reports and gave further evidence in cross-examination but the conclusions and opinions she had expressed did not alter.
Issues
Counsel for the ICL offered a summary of the issues in her submissions and what was said drew no dissent in the submissions that followed. Nonetheless, the summary can be elaborated slightly. Essentially the father’s case involves acceptance of these core propositions:
· The mother suffers from mental illness and she is of low intelligence such that her everyday functioning is impaired, making her unsuited to have the child’s care.
· The mother has a volatile temper and a history of neglect of the child and she has been physically and emotionally abusive of the child, putting the child at risk of harm unless the time spent with her mother is supervised.
· During the marriage he was rarely able to leave the mother alone with the child out of fear for the child’s safety and concern about what the mother may do to her.
· The mother herself was the victim of violence from her family before the marriage and her brothers are physically abusive to children in their family.
· The mother has a troubled and poor relationship with the child; nonetheless, he supports their relationship by proposing supervised time [see exhibit 4 as amended].
· He is a capable and loving carer and he and his family can provide well for the child’s needs.
On the other hand, the mother’s case involves acceptance of these propositions:
· The father and his family looked down upon her and the critical and restricted environment she lived in after her marriage made her very unhappy.
· The father controlled and limited her contacts including with her own family to the point where she felt ‘like a prisoner’.
· She was subjected to violence by the father and his brother, the child’s Uncle N.
· Contrary to the father’s assertions and Dr J’s diagnosis, she is of at least average intelligence and never had a psychotic condition.
· The father coerced her into those consultations and treatment with anti-psychotic medication for psychiatric conditions from which she never suffered so that he could apply for a disability pension for her and a carer’s pension for himself. He had no employment throughout the marriage but had some involvement in cars.
· The father was frequently absent from the family home, she was the child’s primary carer until the interim orders, and she was at all times a competent and loving parent.
· The father is unable to adequately care for the child’s emotional and psychological needs by reason of his inability to put the child’s needs before his own and he does not acknowledge the child’s attachment to her mother.
· She has a strong and loving relationship with the child.
· Her relationship with the child is not supported by either the father or any of his family who are determined to undermine it or at least act to discourage it.
Such findings as are necessary will be made after the evidence has been canvassed.
History
On everyone’s account of it, the 2 ½ years or so spent living with the father’s family was an unhappy time and difficulties continued after they left to establish their own home until separation and beyond.
The mother paints a troubled and troubling picture of life throughout the marriage:
(i)She says difficulties arose early on; her husband’s attitude towards her changed abruptly and he became more demanding. She was regarded by him and his family as having the lowest status in their household and she was unprepared for the poor treatment she received. Their families did not mix readily and from the outset she did not get to see her family all that often. Her husband’s attitude hardened after the child’s birth.
(ii)She maintains the attitude of her mother-in-law – who ‘knew everything’ and ‘could do no wrong’ - became especially problematic after the baby’s birth. Indeed when the child was just a baby in April 2003 she returned to her own family with the child following a disagreement with her mother-in-law. She remained there for a month while there were discussions between family members before she returned. It was during this separation that her father suggested to the father that he move out of his parents’ home into a place of their own and he get a job. It was not long before she left the Dallon home again, this time for several days, following a disagreement about feeding the child. On that occasion she alleges her brother-in-law, the child’s Uncle N, told her to do as she was told, to ‘shut (her) mouth’, he kicked her in the thigh, and he told her to ‘get out of this house’.Her husband was present but said and did nothing to support her. Around this time her mother-in-law also suggested they move out and get a place of their own, which they did in early 2004.
(iii)From that time she says her husband became very difficult. He controlled and restricted her movements; she required his permission to go anywhere - on a number of occasions he drove past her in the street and yelled at her from the car to return home – and he restricted the time she spent with her own family to once a month for the afternoon - she ‘was like a prisoner in (her) own home’. He did not allow her access to money, he was abusive and overbearing, and he was unsupportive with the child’s care. She secretly learnt how to use the computer and studied to obtain her driver’s licence in 2006.
(iv)The father was never employed but he was frequently absent during the day for extended periods – she surmises it was something to do with ‘his motor vehicles’ - and on occasions he did not return home until the morning. She received little support from him with the child and she was fully responsible for the child’s care. Indeed, she decided the marriage was over at a time when he was leaving to go out again even though she had told him she was worried about the child being ill.
(v)She alleges there were occasions the father hit her and he was abusive to her, often in front of the child.
(vi)She attributes to him responsibility for her consultations with Dr J which were part of a ruse he devised to obtain Centrelink benefits: ‘We have to get you a disability pension so I can get a carer’s allowance’. She protested, telling him she does not have a disability and he should get a job, but he replied: ‘That would be stupid. Why should I work when the government can pay for us?’ Her brother, the child’s Uncle S, reports the father making similar statements to him. In any event, he made an appointment for her at Centrelink where she was interviewed by a psychiatrist but her application for a disability pension was rejected. Her husband later arranged for her to be referred to a psychiatrist, Dr J, who was Arabic speaking but not in a language that she spoke and her husband, who was always present during consultations, did not always interpret what Dr J said.
(vii)She alleges her husband forced her to take the medication prescribed, by slapping and pulling her hair, despite suffering adverse side effects and she began to lie about having taken it to avoid his anger. There was an argument in October 2006 when she confronted him about the medication making her sick and he threatened to ‘break’ her head and he slapped her. At her request her brothers came in the early hours of the morning and remained until things calmed down. Her brother, S, relates the father saying on that occasion: ‘I can’t put up with this anymore, she’s angry. She has the mind of a 5 year old’ and showed him his sister’s disability pension card. He says the father did nothing to shield the child from what was going on: ‘I want her to see what a mother she has.’ Indeed, this was not the only occasion her family had been called during argument; they had responded to her request in the early hours of the morning on a previous occasion.
(vii)After this altercation the mother saw Dr J with her brother and she never returned. A few days later she saw her general medical practitioner, Dr U, and on his advice she stopped taking the medication.
(viii)Their separation occurred some months later when she alleges her husband was again being unsupportive and pursing his own interests to the detriment of her and J.
These allegations are denied by the father who also paints a troubled and troubling picture from early on but quite a different one:
(i)He alleges she was incompetent in her care for the child, she would not get up to feed her, that was left to him, she would not change nappies, and she would make the baby’s bath too hot. He would attempt to leave them alone so they could ‘bond’ but he remained nearby ‘in case [the mother] hurt [the child]’. He also alleges the mother was not interested in the baby, she told him several times she did not love the child, and throughout she would say to the child things like: ‘I will burn you and throw you in a fire and god willing you will die’. The child turned to him. The child told him she did not want to be alone with her mother, she did not look to her mother for her needs but to him, and in the last year before separation the child refused to be dressed by her mother at all. He took her to and from child care and to the doctor as required [he often asked the mother to come along even if she was not interested] and he administered any medication prescribed.
(ii)The mother was physically abusive towards J. Contrary to the mother’s evidence of his absences and lack of support, he tried to limit the time the mother spent alone with the child, which happened only on ‘rare occasions’ and invariably the child would tell him on his return that ‘Mummy pinched me’ or ‘Mummy hit me’. He noticed small bruises resembling finger marks on the child’s body many times.
(iii)He alleges the mother admitted to a serious assault on the child in late 2005 or early 2006. The child was in her mother’s care - at home alone as it happens - when she sustained a deep cut to her lip. On his account of it in his affidavit, the mother initially claimed the child had fallen on a high bench top and cut her face, but she then admitted to him: ‘Ok, I punched her and so she fell face first onto a hard surface.’ On another occasion in 2006 he alleges the mother dragged the child by her arm 8 or 10 meters to her bedroom.
(iv)He says he told Dr U and Dr J about her assaulting the child and that Dr J had suggested he try to help her by supporting her and indeed the mother promised she would stop ‘beating’ the child. He tapped the family phone in 2006 as part of his effort to ensure the child was safe with the mother when he was absent; as he explained his motive, the child often played near the phone and tapping it meant she would be nearby if her mother was on the phone. He never reported any of this behaviour to the authorities, he says, because he thought he could help the mother get better in time and stop hurting the child and he was afraid the Department would take the child away if he notified them. [Nor, it can be added, did Dr U or Dr J as mandatory notifiers contact the child protection authorities.]
(v)He dates the mother’s mental health problems from early on; he says she appeared depressed after the child’s birth and around that time she told him she heard voices. His mother also relates her saying she was ‘hearing voices’ around this time. He became concerned at her health following the child’s birth and he sought medical help for her; that is, he took her to see Dr U. But the medication he prescribed did not help and so in 2005 they consulted Dr J and she seemed to get a bit better. But she stopped taking the medication in 2006 and from then she did nothing for the child such as cooking, bathing or looking after her and her behaviour at home ‘got worse’ - she shouted at him and the child and generally acted aggressively.
(vi)He elaborated on her mental state and related matters in discussion with Dr Q. He said even before they married she was very ‘nervous’ and unhappy at home. He wanted to defer the marriage but she said she would kill herself because she could not continue living at home. Her father and brothers took her money and gambled it and beat her, she ran away. He was sympathetic: ‘I did not think it was a problem in her, I accepted that it was a problem in the family’ so they married. He said her nervousness continued every day and she would often wake up distressed in the middle of the night. He used to take her to visit her family ‘..she would go four times a week; sometimes she wanted to go every day; he would take her. He decided they would have children: ‘maybe it would change her’. But he said things did not improve after the child was born and so she saw a specialist and began taking the medication prescribed.
(vii)In his evidence he says the mother told him during the first year of their marriage that her father and brother used to punch and hit her when she was a girl. [Presumably he did not mean this evidence to be read as the first time she related her family’s abuse since such a reading would not sit with his account to Dr Q of her pre-marriage disclosure of her family taking her money and beating her].
(viii)He says he made the decision to become the child’s primary carer in 2003 when he ceased to run his business due to problems with the mother. He also says that in 2006 and 2007 he investigated the possibility of working outside the home but he did not take up any position because he spent most of the day looking after the child.
(ix)He denies controlling or restricting the mother’s movements or visiting her family [although he also says, in effect, that her family exploited her by having her clean their home when she did visit and he sought to protect her from this] and he asserts she was able to go out shopping alone. He maintains he was highly supportive by encouraging her to learn to drive, read, write and speak English.
(x)His witness, Dr J, remarked upon this topic in the course of his evidence:
‘..he [the father] was agreeable that she visit them but he did not see that she should spend like several – like go there several times a week. He would say: “Go once a week but don’t sleep over.” And he had certain conditions which were probably excessive but he felt that they had some influence on her... His conditions that she shouldn’t stay overnight, that she doesn’t - shouldn’t go and work there because I think he felt that she goes there and does the housework for her parents and he felt that they exploit her or something in some way.’
Allegations of incompetence, neglect and abuse are supported by the evidence of his family. Examples from the paternal grandmother’s evidence include:
(i)While living in her home, the mother was ‘angry, aggressive, at times violent and at other times completely uncontrolled in her behaviour and language’, which was offensive and vulgar. She alleges the mother hit the child, she often ignored her if she was crying, and she often had to be told to attend to her with basic care. She did not develop a bond with the child, she said she did not love the child, and she said the child’s birth was the worst day of her life. Her son was fully involved in the child’s care the ‘same way a mother would be’.
(ii)She remained concerned about the mother’s behaviour after they moved out. She observed her slap the child, pinch her, and handle her roughly. The child was repeating this behaviour by sometimes pinching and slapping others and when she was asked why the child replied: ‘[the mother]. She had heard the mother say things to the child such as ‘you’ll burn in hell’ and ‘shall I set fire to you? Do you want me to pinch your eyes? May god take you I wish you would die’ and about the child ‘I wish she was dead.’
(iii)She relates the occasion her son called her to say the child had been hurt in an accident and asked her to go to their home – this is the ‘split lip’ occasion that received some attention at the hearing. Her daughter came to collect her and they both went to their home. She alleges the mother said she had let the child go and she had fallen off a table, adding ‘if she falls she falls’. She also alleges the child gave her this account of what happened: ‘Mummy pushed me and I hit the edge of a table.’ All three women went together to take the child to the medical centre, nearby as it happens, and the cut was treated by being glued rather than stitched.
(iv)The mother had told her that her father and brothers used to hit her – that she loves being around the father’s family who treats everyone with respect, men as well as women. She has never observed any violent or aggressive or intimidating behaviour from her son towards the mother. Though he is not a witness, the paternal grandfather is reported by Dr Q as saying the mother also complained to him of having suffered at the hands of her own family who had beat her and denied her an education and forced her to work in the family business in Iraq. The father’s counsel bolsters this picture of the mother’s family in closing submissions by reference to the comment by the child’s maternal Uncle S: ‘we come from an angry background and we have a weak point’. [However, it can be said here that he explained this, plausibly and satisfactorily, by relating it to life experienced in Iraq.]
Examples from the evidence of his brother, the child’s paternal Uncle N, include:
(i)He describes the mother being loud and aggressive after the baby’s birth in 2003 and being unresponsive to and dismissive of his suggestions. He noticed occasions when there were small red marks the size of thumb prints on the child’s legs and that the father tried to ensure the mother was not alone with the child. Never once did he see the father act in an aggressive or violent fashion towards the child, the mother or the mother’s family.
(ii)He elaborated on his observations of the mother being rough and physically abusive towards the child in his oral evidence.
These various allegations are denied by the mother.
From the separation on 4 April the child was in her mother’s care at the maternal grandparents’ home until the interim orders of 1 May 2007. In that time the father had contacted a cousin in the Patau family and there were some discussions which resolved nothing, obviously. After being served with the father’s application for Court orders, the mother engaged a solicitor to whom she gave instructions for her affidavit and she attended a counselling conference at the Court. However, at the interim hearing on 1 May there was no affidavit from her put to the Judicial Registrar who made these orders:
‘1. The child to live with the father.
2.The parties are restrained from removing the child from the Commonwealth of Australia.
3. An Independent Child's Lawyer appointed.
4. Proceedings adjourned to 21 May 2007.
5. Mother to file and serve all Affidavits in response by 11 May 2007.
6. The mother spend time with [the child]:-
6.1 Each Wednesday and Friday between 1.00 p.m. and 3.00 p.m.
6.2 The time be spent by the mother at [L] School.
6.3The mother is restrained from removing [the child] from [L] School.’
The mother went to see Dr T on 11 May and for whatever reason the interim arrangements were not revisited after her affidavit and Dr T’s report became available.
A few weeks after the interim orders there was the episode at the shopping centre described by the child’s paternal Aunt W in her affidavit. The mother’s evidence about it differs but she does not deny there was an unpleasant encounter. She says she was angry because she was being labelled as ‘crazy’ by the Dallon family and she alleges the sister made a gesture with her hands to indicate the mother is ‘crazy’.
Since the 1 May orders there has been little contact between the parents or between family members - the mother’s time with the child has been in the supervised setting imposed by those orders. Nonetheless, issues have arisen in the form of disputes and attitudes about various matters:
(i)The father collected the child from pre-school after the interim orders were made. He describes the child as being very distressed, almost unable to speak for about 10 minutes, and clinging to him. His brother, N, took a video of the reunion which was viewed in Court. The father says he later learned the child had been told he had died. Nonetheless, he describes the child as settling back into her routine and to preschool; she hardly spoke about her mother or her mother’s family, but sometimes said: ‘I don’t like my mother’ to which he would reply: ‘Your mother loves you very much, don’t you have a nice time when you see her? She specially comes to see you because she loves you very much.’
(ii)The paternal grandmother says that on her return the child complained of her treatment at her mother’s parents’ home – ‘I asked where you were, they told me daddy gone, you gone, they locked me in a bathroom, uncle kicked me in the back’ – and the child was very ‘clingy’ to her father. She hardly spoke about her mother or maternal family, and she woke in the night crying and screaming for about a month, not something she had done previously when she lived with her family.
(iii)Initially the mother’s time with the child occurred at the pre-school but that ceased towards the end of 2007. As the child was to start kindergarten in early 2008, other arrangements had to be made. There is correspondence between solicitors about this and ultimately it was arranged for the time to occur at the Blacktown Contact Centre. There were some arrangements covering the Christmas period, referred to on the one hand as ‘haphazard’ while the father complains of the mother’s unresponsiveness to his initial offer, but there was contact in the end result.
(iv)The mother alleges the child was regularly absent from preschool when she was meant to see her, including 19 December when there was to be a Christmas party. On the other hand, the father says the child was only absent when she was sick, as she was on 19 December, and despite his attempts to arrange additional visits the mother did not attend on a number of occasions he specifically identifies by date. The mother denies it and says she had sound reason for not attending on the few occasions she specifically identifies.
(v)The father reports these statements by the child about her mother’s visits: ‘Every time Mummy comes she won't let me sleep when everyone is sleeping’; ‘Mummy tells me Daddy is yucky and naughty’; ‘Mummy just tells me bad things about daddy and you and grandpa’; ‘Mummy said I should spit on you’.
(vi)The mother says the child told her she is not to receive gifts from her and the father refused permission for her to give a birthday gift to the child at her school. The child told her the new dress her mother had given her had been thrown in the bin by her grandmother; she asked her mother for a ‘Dora’ DVD which she watched but would not take with her as her father would get upset. The father denies prohibiting gifts. He had been concerned the mother would say he had thrown the dress away so he took it to the interview with Dr Q to show it had been kept. He also took empty boxes of medication the mother had been prescribed. He conceded he refused permission for the mother to give the child a present at school but suggested it be given to her at the Contact Centre. On the other hand, he was critical of the mother having given the child ‘gambling’ cards which he saw as inappropriate.
(vii)The mother says the child presented on one occasion with a bruise on her bottom which looked like a belt mark, which the child did not wish to discuss, saying: ‘I fell on it’. Also, the child has made statements suggesting her mother’s role is being undermined in the father’s home: ‘…Nanna said that she is my one and only mother’.
(viii)There was an occasion when both parents attended the Contact Centre only to discover it was closed. As the father describes it, he attempted to allow the mother time with the child outside while he waited nearby but the child would not separate from him and the mother spat on him. Their paths crossed at the Contact Centre on another occasion when they both mistakenly attended and he alleges she abused him.
(ix)On 6 February 2008 it had been arranged for the mother to pick the child up from school to attend the appointment with Dr Q and the father says the child was not returned to school in time to be collected and the principal had to call the mother to ask her to return the child to school.
Credit
I leave to one side for the moment the evidence of the experts which will be discussed separately. Some of the evidence of the parents and their witnesses reflects what might be called common ground; in other words, that some event occurred or some aspect of what transpired. But there is much in dispute and material differences cannot all be written off to differing perspectives which are not unnaturally brought to bear by different people experiencing or witnessing the same event. Therefore credit is squarely an issue, recognised by the emphasis given to it in counsel’s submissions, so it is necessary to make findings about truthfulness/reliability or fabrications/distortions. Not surprisingly, counsel for each parent urges the broad finding that the evidence of the father/mother as the case may be should be preferred; however, it is the submission of counsel for the ICL that the evidence of the mother and her witnesses should prevail.
Before coming to the key points argued, it can be said as a general proposition that this is not a case where any one body of evidence, from either parent or any one witness, is without some identifiable shortcoming usually associated with assessing credit. Also, it is apparent that objectivity has been blunted to one extent or another by reason of emotions running high, the strong desire to achieve the outcome proposed, enmeshment in the dispute, and alignment to the cause. It is also recognised that the language of the Court is not the first language of anyone from either family, and it seems to me reasonable to make some allowance for the subtleties of usage and idiom perhaps being lost in interpretation. That is not to suggest that the skills of the interpreters were in any way wanting; certainly no complaint was made to that effect; it is merely to recognise that one language is not always rendered with precision in the immediacy of this sort of setting. So where credit submissions might find some traction in another case, in these circumstances a bit more caution is probably warranted. All that said, I am satisfied a broad based credit finding can be made in this case.
I turn first to the credit submissions for the father which conclude with this general proposition:
‘The credit issues do not make the mother any worse a parent but it is submitted that aspects in the mother’s evidence which are inconsistent to the extent that they outweigh any perceived inconsistencies in the father’s evidence should be noted. Whilst the father may have appeared, on the mother’s evidence controlling, the inconsistencies, including what was told to Dr [Q] by the mother’s family members should be given the weight by the court to show that the father’s alleged controlling behaviour was that of a protector.’
An example given of the mother’s greater inconsistencies is the change in her evidence from ‘never’ smacking the child and using a Hi 5 video as a disciplinary tool to sometimes ‘slapping her hand to stop her doing something dangerous’. However, that is not much of a support for the submission. As for the submission about the father’s alleged controlling behaviour being that of a protector, not ‘putting (the mother) down’, it is better able to speak for itself:
‘...but her own brother and father referred throughout their evidence to her status not necessarily in a derogatory manner but in a way that the court could infer the mother had heard this from her family. References to the tradition of girls in Iraq not completing their education and ‘cleaning’.’
Yet their evidence does not impress me that way and nor could I draw the inference urged. The mother’s brother S made the observation in his affidavit that his sister only attended primary school in Iraq, that education of young women in Iraq was ‘sadly lacking’, and it was traditional for young women in large families to forego education in favour of helping parents look after the other children. He explained at the hearing that they are a Catholic family who do not wear the head scarf and girls from those families are hassled at school in Iraq with comments such as ‘yeah, nice hair’ which tends to keep them away from school. He said his family supports education, he and his brothers finished their education, and his younger sister finished her education here in Australia. In my view, none of this or any of his other evidence could be construed in the way suggested. On the contrary, he was a rather impressive witness who presented as straightforward and genuine. Nor was there anything in the evidence of the mother’s father that could be construed as support for the submission.
As for the evidence of the mother’s father generally, it is said that he was unaware what was in his own affidavit and his evidence was ‘confused and inconsistent’. That submission may have some surface appeal on close examination of what he said, but on his exit from the witness box he left behind the distinct impression of having accounted as best he could for the history from his perspective and of being a concerned and loving father supporting his daughter, which is quite at odds with the father’s case about the treatment meted out to her by her family at an earlier time.
Still on the topic of inconsistencies, it is said there are inconsistencies in the evidence of the mother and her witnesses about the father’s supposed restrictions on her contact with her family and the photograph which became exhibit 19 is cited to undermine it further. Yet when that body of evidence is examined, the family is in unison about their belief that restrictions were imposed and they attributed this shared belief to what they were told by their daughter/sister about her husband’s rules before the separation. Some incongruence in the detail of time and timing there might be but, in my assessment, there is nothing of substance or in their manner to suggest they had fabricated what they had been told back then. Of course there is the photograph to be considered, but it does represent a single instance.
There are other criticisms of the mother’s case: she had not raised with Dr T any of the father’s allegations about her treatment of the child; the maternal grandmother had not been told about the split lip ‘accident’; and the maternal grandmother did not know her daughter was consulting a doctor and taking medication despite seeing her once a month. Yet I do not assess these as undermining points. It is also said that the maternal grandmother did not know she had been proposed as a supervisor, and yet it is difficult to fit this to credit since it is the father’s proposal and any deficit in her knowledge of it must surely reflect on him.
Criticism of the mother’s evidence is on firmer ground with the submission that, despite its seriousness, the mother’s allegation that the father disciplined the child by hitting her was not in her affidavit, explained by: ‘I might forget mentioning that – I’m saying that now…so many things more serious … happened in my life.’ Counsel for the ICL also submits that the allegation should be found to have no substance since there was nothing about it in her affidavit and she could not recall when it had occurred or relate the surrounding circumstances. For my part, its seriousness is beyond doubt in a parenting dispute and the explanation given for not raising it earlier falls short of satisfactory and gives rise to suspicion of recklessness to suit her cause which, in turn, calls for caution when evaluating her evidence. This is the approach I adopt here, although it has to be said the mother’s evidence was otherwise given in a straightforward and credible manner.
There is also a submission from the father’s counsel to the effect that preference for his evidence is demonstrated by what he says of his attendance at the casino. To make the point, counsel points out that he changed his affidavit from having been to the casino only 2 or 3 time ‘since (he) has been in Australia’ to ‘since separation……only once I think’ and it is said exhibit 25 [the casino records] supports that. The need for amendment is said to arise from a misunderstanding in interpretation although that is not elaborated. A related submission on his behalf is that his supposed reluctance to gamble is demonstrated by his ‘abhorrence’ of the gift of playing cards the mother gave to the child. Against the first argument, it is submitted that if his affidavit is read as amended it conveys the impression he was a rare visitor to the casino at any time which is not true since the casino records show he was there many times. For my part, I would not go so far as to read the amended evidence suggesting he was a rare visitor, but otherwise the point is accurately made that he did not address the casino issue in a straightforward way and ultimately his regular visits there, car draw or not, do not sit comfortably with the need to be on hand at home save for occasional absences for short periods so as to ensure the child was not at risk of harm from her mother’s inadequacies and abuse. It can be added that the criticism of the mother about the playing cards came to nothing in the final analysis; they turned out to be ‘Dora the Explorer’ playing cards, which might conceivably be argued to have some value as tools for conceptual, visual, numeracy skills development. More to the point, the record of the father’s attendances at the casino - whenever and for whatever purpose - does not demonstrate ‘abhorrence’ as suggested.
There are other submissions put for the father which do not take the credit issue very far; for example, his denial of having had an appointment with Dr J [in fact what he said of it is not quite congruent with what Dr J said occurred]; neither parent nor their families had anything positive to say about the other to Dr Q but the father’s proposal per exhibit 4 shows him to be positive about the maternal grandmother assisting in supervision of the child’s’s time with her mother [yet any outlook in that direction had not found expression up to the point the proposal was put]. Nor does it take credit very far to submit, as his counsel does, that the sincerity and veracity of his beliefs about the safety and protection of the child is evidenced in the affidavit material and in his evidence to the court. There is an unhelpful circularity to this: indisputably, he and others gave evidence about incidents which, if true, would support the need to protect the child from the potential of harm by her mother, but the very question is the veracity of that evidence. If, on the other hand, the submission means to draw attention to the consistency between his evidence and that of his family, that can be accepted; there is an alignment on all the important aspects of his case. But if it means that he sincerely or genuinely believes the mother has the history his case asserts, I have difficulty accepting that after consideration of the evidence of the three psychiatrists and other assessments.
To support preference for the mother’s evidence, counsel for the ICL puts other argument. For example, it is said that the father’s repeated reference to the 26 days between the mother’s departure and seeing the child on 1 May suggests he had no idea where they were, which was ‘less than frank’ since he admitted assuming they were at her parents, or at least her parents would know where she was. But I am not confident this was to suggest he had no idea where the child was; the repeated reference to the 26 days was more likely a criticism aimed at reinforcing for the Court the length of time the child was kept away from him, bolstered by his interpretation of the reason for the child’s distress when reunited with him.
The more sound submission is that the father was evasive about his work history or employment, an adverse credit point also argued by the mother’s counsel. I agree his evidence is unsatisfactory and it raises questions about related aspects of his case. He told Dr J in 2006 he had to give up work to care for his wife and child which is quite contrary to what he said in paragraphs 19 of his affidavit and following:
’19. In or about 2003 when [the child] was still a baby, I decided to concentrate on looking after [the child] (as well as [the mother]) until [the child] was school age. I therefore did not seek paid work outside the home.
20. In or about 2006 and 2007, I investigated some possibilities of working outside the home, but every job required me to leave home at about 7.30am and not return till later that day. I declined these positions because by this stage I was spending most of my days looking after [the child] and did not feel I could leave her.’
In turn, this affidavit evidence is inconsistent with other evidence he gave to the effect that he had not worked during the marriage except for one small job in 2005. Reference to having had assistance from his brothers, absent in his affidavit and not mentioned in what he told Dr J, does not cure the problem. All of it is inconsistent with the mother’s evidence that he had no employment during the marriage.
Apparently he offered the evidence in paragraph 19 to establish a connection between his work history, or work related decisions, and the need to be available at home to monitor the mother’s day to day care of J and to ensure J came to no harm from her mother’s neglectful and abusive parenting [for indications of the vigilance necessary see paragraphs 30-34 of his affidavit]. But the unsatisfactory state of his evidence means he has failed to establish that connection, which is also undermined by his attendances at the casino per the records produced.
It also accepted that some of the evidence of the father’s brother ‘defies credulity’; namely, that he would have witnessed incidents such as he described at the hearing and not intervened in some way. I agree that a responsible adult would have taken some action in the face of conduct he described and I accept his passivity suggests either nothing of the kind happened or he had exaggerated something which called for no action.
The mother’s counsel is also critical of the father’s credit by reason of changes in his evidence. Putting aside his work history already mentioned, it is said that he changed his account of the conversation with the mother in paragraph 29.2 of his affidavit – namely, she admitted causing the injury to the child’s lip by punching her and she fell face first on to a hard surface - to the mother having ‘hinted’ on that day that she hit the child but she ‘confessed’ two days later. The submission has substance, in my view, and even caution by reason of language barriers does not save it from being an important internal inconsistency about an important topic; namely, the circumstances in which an admission was made of an assault of a 2 ½ year old child. There is also merit in the submission related to the father’s allegation the mother had failed to attend to spend time with the child on certain days he specified; contrary to what he said, many were shown to be baseless and unsupported by the records. If this piece of evidence was intended to suggest disinterest by the mother in the child or some related criticism then it fails.
Finally, there is the submission from counsel for the ICL to the effect that the father deliberately put a case, constructed to paint the mother in the worst possible light, that relies on evidence he must know to be untrue since he is an intelligent, well-educated man; namely, by his reliance on Dr J’s diagnosis of the mother having Borderline IQ. This is supported with the accurate observation that it is apparent from the mother’s presentation that she is at least of average intelligence, which is the very assessment made by Drs T and Q from their different vantage points – it is also the substance of the unchallenged evidence of Ms R who saw her professionally in yet another context – and there will be a finding shortly that Dr J’s diagnosis was significantly flawed. Counsel’s point is that the father must know she is not intellectually impaired and he must have known it before he married her and yet he persisted with it as an important plank to his case. Counsel submits he attempted to convey the impression of limited time with his intended wife during their courtship but the mother’s account of his visits to her at TAFE, where she was studying, and trips on the ferry was the more compelling. I agree. The father’s preparedness to adopt here what he must know to be untrue reflects adversely on him.
All matters considered, I am satisfied the evidence of the mother and her witnesses are to be preferred to the extent there is conflict with the evidence of the father and his witnesses if it is not otherwise shown to be implausible or improbable.
Before leaving the topic of credit, criticism of Dr Q’s evidence can be addressed. Having conducted interviews in December, Dr Q decided to schedule further interviews with the mother and the child. This relates to the unsuccessful effort to have the child come into the interview room alone for observation with her mother. As Dr Q describes it:
‘…Initially [the child] did not look afraid and seemed to be smiling but then she began to cling to her father and refused to separate. [The father] looked quite grim; he was encouraging the child with his words but his body language seemed to convey the opposite.’
She goes on to say the mother came out into the waiting area and tried to coax the child to come, described as very appropriate and encouraging, but the child moved behind her father’s legs and refused. It became apparent after about 10 minutes that it would not be possible and so she suggested the father and child depart. The father also describes the scene in his affidavit. Later Dr Q asked that arrangements be made for a further interview with the mother and child, this time for the child to be brought to her rooms by the mother, and that took place on 6 February. Also in attendance on that day were fifteen members of the mother’s family who, according to the mother, were keen to come as they had not seen the child for about a year. The child was assessed as a completely different child in this context, very relaxed and comfortable, she wrestled with her cousins, there was a lot of good natured roughhousing amongst the children, she ran around, she was exploratory, vigorous and talkative. The mother was said to be very attentive and very competent.
Her report was released not long afterwards and later Dr Q was asked a number of questions which she answered as indicated:
1. Were the mother and [the child] interviewed alone on 6th February and if so for how long?
The mother was interviewed with her brother, [S] (previously spelt […], in error), and with [the child] and the two young cousins, […] and […], for about 60 minutes.2. Did you use an interpreter when you spoke to the mother by telephone on 18 February 2008:
No, in my view this was not necessary; the mother's English was quite adequate.3. Who were the other members of the maternal family who attended on 6th February and did they include the brothers [P] and [K]?
The family present were:
The maternal grandparents;
Brothers: [K], [P] and [S];
Brother [A] with wife […] and children, […] and […]; Brother [D] with wife […] and children […] and […]; Sister […] with husband […].4. Did you liaise with Dr [J] while preparing your report and if not, why not?
I did not communicate directly with Dr [J]; I was supplied with his clinical file which detailed his assessment and diagnosis.5. What would be the effect on [the child] if current arrangements were to continue until the final hearing in June 2008.
[The child] is not in at imminent risk of serious harm but her current situation of residence with the father is not optimal to her psychological and emotional development and in some ways it is restricting her development. It is my view that the mother provides a more optimal psychological environment for the child: there is a warmer and more appropriate attachment relationship and that the child's development is greatly enhanced by this so that it is in the child's best interests that she take up primary residence with her mother as soon as that can be effected.
The father refers to her report in his affidavit where criticism is implied and in any event it is clear that he does not accept Dr Q’s conclusions or opinions generally in so far as they are adverse to his case. There are submissions from his counsel under the heading ‘Dr [Q’s] evidence regarding credit’ although what follows is not particularly directed to credit. Even so, it is no doubt intended to argue that the father’s critical view of Dr Q’s method of involvement and her evidence is valid and therefore undermines the weight to be given to her evidence.
Yet I can find no validity to the criticisms of her role, her process or her evidence. The more objective vantage point suggests she undertook the task required of her in a professional and thorough manner, the process employed was open to her in the exercise of her professional judgment, the views she expressed are based on observations she made and assessments she is qualified to make, and they are sufficiently explained by her. As I find, her assessments and her analysis of matters she was asked to report deserve to be given weight.
It can also be said that the objectivity and professional opinion of Dr T is unquestioned and his evidence is accepted. As already mentioned, flaws undermine the evidence of Dr J which I shall come to more directly now.
Mother’s mental health and IQ
Dr J
The mother consulted with Dr J between 29 September 2005 and October 2006 when she saw him on 20 occasions. Dr J says that while the father accompanied his wife to all appointments he remained outside while Dr J saw the mother on 5 or 6 of those occasions. Sometimes, he said, ‘people like to have their spouse in the room’, although there was nothing to make that remark referable to this patient. He could not tell from his notes when her husband was in or out of the room. Nor was there anything in his notes to indicate he had seen her alone on any occasion. However, these recollections about the process he employed are contrary to the evidence of both parents who both say the father was present during every consultation. That is accepted.
Dr J denied ever having sent the mother out of the room and spoken to the father alone, as the mother alleges. He was unable to tell from his notes if certain pieces of information recorded came from the mother or the father, but he does not see that as important or relevant ‘…because the fact is that you get the information and confirm it with the person concerned in private and that’s what matters…doesn’t matter who said it initially.’ Asked about the impact of possible domestic violence in a relationship, he said he always considers that possibility when there is marital discord and he agreed this would be impossible to explore with the husband in the room.
As for language, Dr J is an Egyptian Arabic speaker and the father speaks Assyrian Arabic; they were able to communicate. The mother speaks a different dialect and some Arabic but she says it is not the same as that spoken by Dr J. Dr J confirmed that all his consultations were conducted in Arabic and yet he maintains the mother understood what was being asked of her, he fully understood her answers, he saw no communication problems and he felt no need of an interpreter. This is contrary to the view of the mother who says the father did most of the talking at the time.
Dr J says he understood the reason for the mother’s referral to be her ‘explosive temper’ and her ‘aggression towards the child’ which involved hitting the child in a way that was ‘not normal’ and in excess of ‘what a normal mother would punish a child’. However, taken to the letter of referral, he agreed the stated reason was her complaint of being ‘nervous, irritable and anxious all the time’ and there was no mention of explosive temper and the like. He confirmed this was information he gathered from the father during the first consultation when his notes record works such as ‘auditory’, ‘hallucination’, ‘depressed’, more down’, ‘talked to herself in public’, all related by the father. He describes the mother at the first visit as ‘not talking much’ and answering questions with ‘very few words’. From his observation she had ‘poverty of thoughts’ which he described as a form of thought disorder in which people do not say a lot due to their ‘limited thinking’. He agreed it would be hard to distinguish someone with this condition from someone not speaking because they were intimidated by someone else in the room and he was also bound to agree it would be difficult to distinguish between ‘poverty of thought’ and someone suffering from depression.
He wrote a report to Dr U on the same day as the first visit. He agreed the history of the mother’s temperament and behaviour recorded there came from the father and not her, although he maintains she confirmed it during that appointment – in the father’s presence. In that report he gave a provisional diagnosis of depressive disorder with psychotic features with a differential diagnosis of schizophrenia or schizoaffective disorder combined with Borderline IQ.
The provisional nature of his initial diagnosis had disappeared by April 2006 when he supported an application for public housing by completing a Department of Housing form describing the mother as suffering from ‘chronic schizoaffective disorder’. He also supported the application to Centrelink for a pension where he recorded the mother as suffering from ‘mild retardation’ which he agreed was an error since his diagnosis was in fact Borderline IQ which connotes better intellectual functioning. Nonetheless, he was definite about the mother having a lower than average IQ or a Borderline IQ; he knew this when he first saw her and he did not change his opinion.
Dr J says it was the father who asked him to help them obtain welfare support because he could no longer work – he was working as a builder but had to stop because things were ‘getting out of hand’ with the mother and child - and he needed to look after them. This is in conflict with the father’s evidence that Dr J suggested they apply for the disability pension. In any event, Dr J agreed the request to assist with these applications triggered ‘some alarm bells’ about motives, but he believed welfare support would be necessary due to the fact that the husband could not work and was staying home to look after his wife and child.
He described a ‘schizoaffective disorder’ as including mood symptoms which could be either depression or elation in addition to psychotic symptoms where there is disturbance of thought, hallucinations, delusional thinking or disturbed behaviour. He said he did not personally observe these symptoms in the mother, but she acknowledged she was experiencing these symptoms and having outbursts of anger. He agreed depression can make people aggressive or irritable and it can interfere with the ability to deal with daily life and intellectual functioning.
As for the Borderline IQ diagnosis, he described this as ‘moderate intellectual retardation’ [exhibit 6] which is close to normal IQ and people in this category can still continue at school and read and write and pass a driver’s licence test – it is quite common for such people to be able to drive. Although he agreed it is not possible to accurately determine IQ without it, he also agreed he had never administered or arranged a cognitive functioning test, because of the cost of sending the mother to an Arabic speaking psychologist. His assessment was based on his observations and the usual clinical assessment of comprehension, mathematical ability, concentration, recall and abstract thinking. To adopt his words, the ability:
‘…to engage in normal history taking, and see how they see things, how they concentrate, how they remember things, how they put things in chronological order, how they deal with questions in relation to dates, events, things that require calculations, things that require abstract thinking, metaphoric meanings, vocabulary; all these things are taken into account in assessing somebody’s intellectual ability and cognitive recognition.’
None of this process, which he called more of a ‘global clinical impression’, is reflected in his notes. He was also influenced in making the diagnosis by the fact of someone attending primary school for six years but still being unable to read or write and have only bare or minimal mathematical ability.
As for his treatment, Dr J prescribed Lexapro, an anti-depressant, together with an anti-psychotic which he changed over time: initially he prescribed Abilify, then Rispirdol when the mother complained of tremors, and ultimately to Zypreza. He disagreed that prescribing an anti-psychotic drugs was pre-emptive. He arranged for a blood test and CAT scan [both results normal] but he conducted no other tests. He did not ask the mother about any physical symptoms she was suffering although he later said he did ask and was told she had no physical issues. His notes, however, record her suffering from back pain and record the name of her treating neurologist but he did not contact the neurologist. He was inconsistent in his view about the relevance of back pain to his diagnosis and treatment, at one point calling it irrelevant because the mother did not report being upset by it or it impacting upon her mental state. It would be ‘waste of time’ to investigate medical problems if she was not complaining of them; she would have indicated if back pain was the cause of her mood swings.
Dr J noted the mother hit the child ‘more than was normal’. He was told of this behaviour by the father and she would confirm it, although he felt sure he had discussed it with her when the father was not present [however, there are no notes to this effect and both parents say she did not see him without the husband being present]. He agreed he had been worried about the mother hitting the child which he thought ‘was excessive but wasn’t to the extent of reporting it to DOCS’. Asked the point he believed he would be required to report it, he said:
‘If it’s more than what the average person would say slap on the wrist or something, that would make it more than that and probably more frequent than what an average family would do but not in a way that would be vicious, that would warrant reporting.’
He agreed there was ‘a great deal of marital difficulty’ which could have contributed to the wife feeling depressed, that she did not get along with the father who was critical of her parenting and she wished to spend time with her family. He agreed that by March 2006 he had concluded that ‘the major problem for [the mother] was conflict at home’. But he confirmed it did not occur to him the mother may be confirming the father’s descriptions of her symptoms because she felt intimidated or because of the nature of their relationship; he described that as ‘highly unlikely’ since there was no ‘secondary gain’ to her in doing so. Put to him that she might be avoiding her husband’s anger by going along with him, he said:
‘… who would react in that way if they have a difficulty in the marriage, instead of agreeing the husband that they are psychotic and take medications, why would somebody do that to themselves if they feel this is a losing situation and it’s better to get out of it’
Still, he agreed he had worked with people who have difficulty leaving a relationship.
Dr T
The mother consulted Dr T on 11 May 2007 with the assistance of an interpreter for the purpose of an assessment. He noted her to have limited comprehension of English, although she was able to respond partly in English during interview. He had read the report of Dr J of 29 September 2005. In his report Dr T outlines the history the mother gave, including her denial of any psychiatric problems or having psychotic symptoms at any time, her husband’s role in having her treated by Dr J, the medication she had been prescribed, and her feelings of depression about the way she was treated and the limits placed on access to her family.
Contrary to the diagnosis in Dr J’s report, Dr T said neither her speech nor her behaviour suggested Borderline IQ. Of her mental state examination, he describes her speech as coherent, there was no evidence of thought disorder, she was reactive and spontaneous, she did not appear depressed, and there was no evidence of suicidal ideation or psychotic symptoms. He noted her unhappiness with the marital relationship. As for the variance between her account of her symptoms and Dr J’s report, he said further exploration with collateral information would be necessary to verify what she had reported, but her behaviour and responses did not suggest she was attempting to conceal or distort information provided and her verbal skills suggested she would be at least of average IQ, her cognitive functions were intact, and there was no evidence of short or long term memory impairment. He concluded she is not suffering from a mental illness; rather, she has been depressed as a result of being unhappy in her relationship with her husband. But he would review his opinion if further evidence became available indicating symptoms of a mental illness and further investigations and collaborative information may be required to establish the veracity her account to him against the report of Dr J.
Referred by counsel for the father to the discrepancy between his assessment and Dr J’s opinion, Dr T said he was not ‘discounting’ the latter’s opinion but saying that when he saw the mother he did not find her as Dr J had reported. Perhaps her condition had changed in the meantime. If a person is adequately treated over time and is no longer experiencing the stressors that caused the problem, some cases of major depression with psychotic features may get better, even if the patient ceased seeing a psychiatrist and taking medication. However, he saw no obvious signs of the mother having a thought disorder or tangential thinking which is one symptom of psychosis which is difficult to mask during interview unlike other things a patient might choose not to disclose.
Dr T based his assessment of the mother’s IQ on her verbal skills and presentation which he acknowledged to be a limited impression. Proper testing would be required to establish her IQ level with certainty. Nonetheless, his observations for over an hour and her verbal communications raised no concerns about her intellectual functioning, nor did he observe her to be depressed, and nor did she express any negative thoughts or suicidal ideation. As he sees it, diagnosis of Borderline IQ would definitely require proper psychological testing because it is a ‘big thing….a very significant diagnosis to make….and you wouldn’t want to make it without the proper testing ….requires support and intervention…’ He said he would refer the patient to DADAC for a free test. He says it would be difficult to assess a person’s IQ if they are suffering from depression since it slows things down, stops a person being able to think properly and affects the ability to process information.
He explains the distinction between depression with psychotic features and a diagnosis of schizoaffective disorder this way:
‘The depression with psychotic features is someone who suffers from quite severe major depression and therefore develops the psychotic symptoms…and quite often the psychotic symptoms have got a flavour of depression about it, that is they are very negative, they are what you call nihilistic…. In people with schizoaffective disorder it is considered that a person is more suffering from schizophrenia mood symptoms…in those kinds of cases the psychotic symptoms are a little bit more bizarre, a little bit – they are not consistent with the mood, they are not what you call mood congruent. So they are two different conditions.’
As for the medication prescribed for the mother, he says to prescribe Abilify there would need to be clearly established psychosis not secondary to other conditions such as depression or drug induced psychosis where the primary treatment should be for the primary condition. However, he says at times an anti-psychotic may be prescribed if the psychotic symptoms are not getting better. That said, the medications prescribed here appear to have been reasonable although by the time the anti-psychotic medication was changed for the third time he said he would be asking why the patient is not improving rather than continue to change the medication:
‘I mean, generally speaking, you would change the medication to a different class hoping they would get better with a different medication but also I mean psychiatry is not always about medication so if someone is not getting better then I would explore other psychological associative issues that could be preventing the person from responding to the medication itself.’
In Dr T’s experience, seeing a patient together with her/his spouse during all appointments is problematic. Asked about best practice guidelines about that, he said it depends on the situation:
‘I think you would see a partner firstly sometimes during the assessment to get some further information but that would be just for one or two sessions. Once you establish the diagnosis and the problems then you try and treat the patient individually … to talk about the problems and their relationship issues and often if their relationship is a problem itself, the patient may be inhibited to talk about certain issues or they could be intimidated and not able to talk about certain things that are very important to them or they may have certain things that they would rather the spouse not know, for example, sometimes childhood issues or personal issues … The only time you would do therapy with a spouse is that it is specifically for marital therapy but other than that you would not see the spouse with the patient over a long period.’
If for marital therapy, both spouses would be patients and that would be clearly stated from the outset. Even if he saw both partners together at the initial assessment, he would see the patient alone for at least part of the initial visit, usually first, and then if necessary see the spouse for further assessment perhaps at the end of the first session or the next visit but he would definitely see the patient alone first. Even if the patient explicitly requested the spouse to stay in the room for each session he said if he had the feeling there was any issue the patient needed to discuss alone with him, more often than not he would say he prefers to see the patient alone. In his opinion it would be impossible to explore with a patient issues such as domestic violence in the presence of their partner.
As for the impact of existing physical conditions on diagnosis, he would explore all existing physical conditions because assessment of psychosis requires assessment of pre-existing medical conditions which may be related and you cannot rely simply on what a patient says about their physical health - for example, ‘my back pain makes me really depressed’. Failure to do so would not be best psychiatric practice.
Dr Q
Dr Q was asked to report on a number of areas, including the mental and emotional state of each parent and the cognitive capacity of the mother and any impact on her ability to care for the child.
Of the mother and her family Dr Q concluded:
‘[the mother] is very solidly supported by her family. They appear to be a vigorous, capable, very work focussed group of people; they seem to be hard working and industrious; they work very cooperatively together and have two successful businesses. The women in the family appear to enjoy equal relations with the men; they were all beautifully groomed and very fashionably presented and extremely child focused.
The grandchildren in the family were delightful children and very confident. All of the young men seemed very focussed on the children.
Most impressively [the child] was a different child in this context. She was playful, exuberant, vigorous and enjoyed her interactions with her cousins enormously.[The mother] was intensely focussed on [the child] and very attentive to her. She is meticulous in attending to the child's needs and obviously powerfully invested in the child's wellbeing. She was also highly attentive to all the children.’
In my assessment the child is more likely to have a meaningful relationship with her father if she lives with her mother than the other way round. The benefit to her would very much depend on what her parents each bring to that relationship.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I am satisfied this child is not at risk of physical harm in either parent’s care or household. I am also satisfied she is not at risk of harm from being subjected to or exposed to abuse, neglect or family violence.
She is at risk of harm, however, of psychological harm from ongoing unresolved conflict between the parents and their extended families. At 5 ½ years of age she has many years of childhood ahead of her and to negotiate her way over those many years between her parents and her families in an acrimonious atmosphere can only undermine her achieving her potential.
Her emotional well-being is in question but that will be mentioned under another factor.
additional considerations
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
There is mention of the child’s views in the father’s affidavit and those supporting his case but they are of no weight. The child is not of an age or stage of development where her views could attract any real weight and in any event those views would have to be evaluated for independence of thought after extraction from a high conflict environment.
(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)
Dr Q assesses the child as having an attachment to her father and to members of his family, especially her grandmother. That is accepted. However, it is her opinion that the child showed more attachment seeking behaviour towards family members than to her father which left the impression he is not her primary carer. Of course this conclusion is contrary to the evidence of both the father and his mother who say her father does most of the day to day caring within the home, apart from cooking which the grandmother does. If that is correct, and it is much in doubt, then the child’s response to her father as observed by the expert is unexplained.
It is also Dr Q’s assessment that the child has a strong and loving relationship with her mother. She expressed concern about the child’s unwillingness to respond to her mother while in the company of her father and his family by her refusal to separate from him, described in her report, which Dr Q sees as indicative of her being under pressure to support the views of her father and his family. Those views, of course, are quite negative about the mother and her family.
Since the interim orders of 1 May the maternal family has had little contact with the child. Nonetheless, the observations of Dr Q on 6 February are reason for confidence that the child has good relationships in place there.
(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
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
(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
[(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
These various matters can be taken together.
Taking (4) first, contrary to the case put by the father, I am satisfied the mother has not failed to take the opportunity to spend time with the child when time was available, save for the limited occasions for the good reasons she gave. Since the child has been in her father’s care for the past 16 months or so since the interim orders, the circumstances do not allow his actions to be evaluated against this particular consideration. He has facilitated the mother spending time with the child by ensuring she has been available according to the time specified in the interim orders. To the extent she has not been available he has advanced good reason.
As for the parents’ capacity to meet the child’s needs, the evidence throws up not insignificant differences between the parents. The child’s responses to both of her parents stand in stark contrast. On the one hand, with her father she displays a cautious approach, not engaging particularly, being somewhat restricted in her play, with little exploratory behaviour; that is, inhibited, anxious and lacking confidence. On the other, with her mother she was relaxed and comfortable, without her father or his family present, playful, exploratory, vigorous and talkative; that is, confident, happy and vigorous.
In her view, the mother provides a more optimal psychological environment for the child: there is a ‘warmer more appropriate attachment relationship’ with her mother which greatly enhances the child’s development. These assessments are not contradicted by any of the other evidence and are accepted.
The evidence also gives rise to concerns about the father’s willingness or ability to foster a positive relationship between the child and her mother. He has perpetuated the proposition that she is impaired intellectually, when that is so demonstrably not so, and the potential detriment to the child by communicating to her that myth is all too apparent. Apart from the possible impact on the child’s own sense of self, her confidence and esteem, it would very likely work to undermine her relationship with her mother whose supposed deficiencies would be reinforced at every turn. If it is not already being communicated to her, it would only be a matter of time since the father appears incapable of restraining his negative views about the mother.
This last conclusion is drawn not only from his evidence but also from Dr Q’s report of her interviews when she observed the father repeatedly refuse to refrain from talking about difficult issues with the child in the room despite her repeated requests to leave those topics until later. His remarks repeatedly referred back to the distress he experienced when the child was taken by her mother for a month after separation and the bruise she returned with at the end of that time, showing a photograph he had taken of it, all while the child was present. As she noted: ‘..it was impossible to stop [the father] from pursuing this kind of information’ and he was asked to leave the room with the child as she was unable to keep him off difficult topics. Of course it is understandable that a parent would want to impress a reporter to the court with the things they feel is important to an understanding of their position and the case they are putting to the court, but these observations of his attitude and behaviour go beyond that.
It is also of concern that he would respond to a question about the contact the child should have with her mother with ‘the less the better’ and if it occurs it should be supervised. Saying she did not respond to his letters proposing contact - ‘they don’t care’ - does not alleviate the concern.
Nor is there any reason for confidence that his negative attitude towards the mother and his enthusiasm to air his views whatever the setting would be softened by the counter influence of his mother or members of his family, all of whom continued to assert criticism of the mother and all are sure she had a mental illness. In her discussions with Dr Q the paternal grandmother talked extensively about the mother’s deficiencies, including the proposition that she did not care for the child and does not love her. Other evidence that the family encourage the child to love her mother does not sit well with this kind of attitude.
None of this is to say at all that there is not a negative attitude towards the father and his family coming from the mother and her family. Demonstrably, there is. The mother’s anger and her behaviour towards the father’s sister and her family at the shopping centre encounter, although in the hot house atmosphere of a few weeks after the interim orders, is an indicator of the depth of feelings running there. But unlike the father and his family, there is no indication they are not able to contain their attitude in the child’s presence, the mother is able to contemplate and propose contact arrangements that are suited to the development of a proper relationship between the child and her father, and she is not propounding views about his level of functioning she knows to be false.
Overall the evidence supports the conclusion by Dr Q that the father appears to have limitations in providing for the child’s emotional development while the mother is able to provide well for the child in all respects. She is not in ill health, she is engaging with her community in that she is improving her English and looking forward to participating in the workforce in the future, and she has the support of a close family. Dr Q described her family as a cohesive unit, an ‘extremely affable group of people’ who are very child focussed. She described the children as ‘delightful and beautifully presented’ and their play as happy and normal. Dr Q also says the women in the family seem very confident and outspoken and modern in their outlook, having no difficulty interrupting the men when they wanted to add their viewpoint. All of this runs counter to the picture the father would have accepted of them and their treatment of the mother and children in the family.
(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
Changing responsibility for the child’s primary care to the mother would mean a change in her residence away from her father and his family’s home which he shares with his parents and his brother. It follows this would be a significant shift in the child’s day to day arrangements and would separate the child from her father, her paternal grandparents, uncle and other family who visit regularly. By going to live with her mother she would be living with her maternal grandparents where she would be in close contact with other extended family on her mother’s side.
However, it is accepted that the child is very happy in the care of her mother and around the extended maternal family and it is very likely, therefore, that she would adjust to the change and respond well to spending most of her time in her mother’s care.
(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
There are no practical difficulties of any relevance.
(j) any family violence involving the child or a member of the child’s family
I am satisfied this child has not been subjected to violence from either parent or anyone else.
(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
There are no family violence orders.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
One of the orders sought by the father is for a limited regime of contact to be put in place by orders made now, then six months later the parents would have an appointment with a Family Consultant to discuss parenting arrangements and agree on changes through a Parenting Plan ‘if appropriate and recommended by the Family Consultant having regard to the implementation of these orders for a 6 month period from the date of these orders’.
The proposal is without merit. First, there is no circumstance to warrant the conclusion of this case being deferred for the purposes stated or otherwise. Secondly, the proposal envisages the continuation of the litigation which can only continue the family conflict in which this child is embroiled. Thirdly, adoption of the proposal envisages some prospect of agreement between the parents and there is no cause for confidence that would come about. Fourthly, adoption of this proposal would effectively confer responsibility for a decision about this child’s future arrangement to the Family Consultant. That is not the role of a Family Consultant and nor is it their responsibility; it is the Court’s role and responsibility.
(m) any other fact or circumstance that the court thinks is relevant
It is the view of the court appointed expert, and consistent with the position put by the ICL, that the child’s developmental needs are not being well met in the care of her father. Dr Q recommended that she be moved to a situation where she can establish a relationship with her mother and her maternal family. In her opinion the entrenched position of the father and his family make joint parenting arrangements difficult since there could be no sufficient confidence they would not seek to manipulate the child and continue to undermine her relationship with her mother. Given the set of circumstances noted, she says it may be impossible to implement a joint parenting arrangement. In my assessment her opinion is well founded and supported by the weight of the evidence.
Parental responsibility
Turning to the question of parental responsibility, there is an obligation to apply a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility [s 61DA(1)], which is about decision making and not time. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in child abuse or family violence [s 61DA(2)] – not applicable here - and it may be rebutted if the evidence establishes equal shared parental responsibility would not be in the best interests of the child [s 61DA(4)]. Dr Q’s view just recorded, assuming it applies not just to time sharing but also to decision making, is relevant to the latter.
I have considered that view. I am cognisant of the high level of conflict not only between the parents but also between the families. I am also cognisant of the poor record in communication between the parents and of the attitudes demonstrated in the evidence. Nonetheless, I have ultimately come to the view that equal shared parental responsibility should be maintained in all but one area of responsibility; namely, the child’s schooling. Given the decision about the child’s residence, the mother’s position, which I consider sensible and appropriate, will be adopted. The mother will be entitled to make the decision about the child’s schooling since the child will be living with her. It follows that I reject the father’s proposal that he be given sole parental responsibility.
Equal time
It follows that consideration must be given to whether it would be in the best interests for the child to spend equal time with each parent and whether that would be ‘reasonably practicable’ - if it is, to make that order [s 65DAA(1)].
The factors which underpin what is ‘reasonably practicable’ are the distance between the parents’ residences, their capacity to implement an equal time arrangement, their capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind, the impact such an arrangement would have on the child and such other matters the court considers relevant [s65DAA(5)]. For reasons already given, I find it would not be reasonably practicable to implement an equal time arrangement and nor do I consider that to be in this child’s best interests, which is not an outcome proposed by either parent or the ICL in any event.
Substantial and significant time
There is then an obligation to consider whether it would be in the best interests of the child to spend ‘substantial and significant time’ with each parent and whether that would be ‘reasonably practicable’ [s 65DAA(2)]. ‘Substantial and significant time’ requires that the child spend days that fall on weekends and holidays and those that do not and also allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and also allows the child to be involved in occasions and events of special significance to the parent [s65DAA(3)].
This would have some attraction if the attitudes discussed earlier were different, capacity to meet the child’s emotional needs were greater, and the ability to communicate as parents was not so ridden with negativity. As it is the child’s best interests will require some lesser arrangement that might otherwise have been possible.
Conclusion – best interests
Having considered all these matters, I am satisfied this child’s best interests would be served by moving to live with her mother. Within the ambit of her mother’s care she will have the better opportunity to maximise her potential for a healthy and secure development in light of the depth of her positive response to her mother and her mother’s superior ability to meet all of her needs, including her emotional needs. Her father has much to offer her also but a number of considerations combine to detract from other possibilities: his entrenched negative attitude towards the mother, his apparent inability to desist from criticising her in front of the child, and shortcomings in his ability to appreciate and fulfil the emotional needs of the child.
The ICL proposes a set of orders adopted by the mother including time arrangements. This includes an initial adjustment period which I agree is important in the circumstances. Thereafter there is a proposal for alternate weekends from Friday afternoon to Monday morning, another overnight visit in the fortnight, and for a block period of two weeks in January. I do agree there ought to be an initial period where the child can settle and consolidate her circumstances with her mother. I also agree there ought to be some contact with the father in that initial period but limited as to duration and in the setting suggested so as to ensure the child is not exposed to unsettling attitudes while she makes the transition in her living arrangements. As for the period to follow, I am satisfied a more gradual increase in time with her father and in his household than that proposed would be appropriate. Therefore the alternate weekends have been retained but are for Saturday/Sunday at that stage, as well as another overnight stay within the fortnight, leading up to the two weeks stay in January which has been moved back a week to maintain this adjustment phase for longer. From the beginning of the first term of 2009 it is proposed the child spend with her father longer alternate weekends, one overnight stay in the other week, and periods during school holidays as well as special occasions. Some might see the child’s best interests as calling for some more time to be spent in her mother’s care, but all things considered this is an acceptable arrangement which has been adopted with some cosmetic changes.
Orders – form of orders
Both parents agree for the child to be maintained on the Watch List and orders will be made accordingly. The changeover arrangements set out are designed to minimise or eliminate the opportunities for the parents to come into physical contact but of course if they can agree to something they consider more acceptable then it should be reduced to writing and they can implement it. Provision has also been made for some telephone contact between the child and her father in the longer term. This is set for a specific time each week and limited in frequency and duration out of concern for the child not being unsettled by negative messages but the opportunity used for positive and appropriate communication. Again, if the parents agree to something else, they can always reduce it to writing for mutual understanding and implement it. Otherwise, the orders are self-explanatory.
SCHEDULE OF ORDERS SOUGHT
Orders proposed by the ICL and adopted by the mother
1.That all previous parenting orders in relation to the child, […], born […] February 2003, be discharged.
2. That [the child] live with her mother.
3.That, subject to order 4, the mother and father shall have equal shared parental responsibility for [the child].
4.That the mother have sole responsibility for deciding which primary school [the child] shall attend.
5. That [the child] shall spend time with her father as follows:
5.1. For a period of 6 weeks from the date of these orders: for 2 hours on each Saturday supervised by the Blacktown Children's Contact Service.
5.2.Thereafter, until the commencement of Term 1 in 2009:
5.2.1.On each alternate weekend, from the end of school on Friday until the start of school on Monday.
5.2.2.In each other week from the end of school on Wednesday until the start of school on Thursday.
5.2.3.During the 2008/2009 Christmas school holidays, from 9.00 am on Saturday 3 January 2009 until 9.00 am on Saturday 17 January 2009, and otherwise the father’s time is suspended during that school holiday period.
5.3. From the commencement of Term 1 2009:
5.3.1 during school terms:
5.3.1.1. On each alternate weekend, from the end of school on Friday until the start of school on Monday, commencing on the first weekend of each school term.
5.3.1.2. In each other week from the end of school on Wednesday until the start of school on Thursday.
5.3.2 during school holidays:
5.3.2.1. For one half of each NSW school holiday period, being the first half in 2009 and each alternate year thereafter, and the second half in 2010 and each alternate year thereafter.
5.3.3. At such other times as agreed between the parents in writing.
6.For the purposes of these orders, school holidays shall commence on the last day of each school term and shall conclude on the first day of the following school term.
7.If [the child] is due to be with her mother on the Father's Day weekend, then she shall spend that weekend with her father instead of the following weekend which she shall spend with her mother.
8. If [the child] is due to be with her father on the Mother's Day weekend, then she shall spend that weekend with her mother instead of the following weekend which she shall spend with her father.
9.For the purposes of orders 5.2.1 and 5.2.2, if it is a non-school day, then periods of time which would ordinarily commence at the end of school will commence at 3.00pm, and periods of time which would ordinarily conclude at the start of school will conclude at 9.00 am.
10. For the purposes of orders 5.2 and 5.3:
10.1.On school days: the father shall collect [the child] from school at the commencement of the time to be spent and shall return her to school at the conclusion of the time spent.
10.2. On non-school days: the parents shall arrange for changeovers to occur at Blacktown Children's Contact Service, and if that service is not available, then the father shall collect [the child] from the mother's home at the commencement of the time to be spent and shall return her to the mother's home at the conclusion of the time spent. [An additional order is sought by mother to the effect that if the collection takes place at the mother’s home, changeover should occur by the father collecting and returning [the child] to the front gate].
11.That each parent be and hereby is restrained from making derogatory, critical or negative remarks about the other parent, or any member of the other parent's family, to [the child] or in her presence or hearing, and shall use their best endeavours to ensure that no other person does so.
12.That each parent be and hereby is restrained from using physical chastisement to discipline [the child] and shall use their best endeavours to ensure that no other person does so.
[It is agreed by all parties that the existing order related to the child being placed on the airport watch list is to be maintained]
Orders sought by Father
That the child of the parties, [the child], born on […] February 2003 live with the Husband.
That the Husband have sole parental responsibility for the said child.
That the said child spend time with the Wife as follows commencing on 25 June 2008:
(i)Every Wednesday during term time from 3.10pm to 4.30pm;
(ii)Every Thursday from after school until 6.30pm;
(iii)One day each weekend for 2 hours at Westfield Liverpool;
(iv)Liberal telephone contact.
3a. The time spent pursuant to Order 3 be supervised by the maternal grandmother.
That Order 3 be suspended during school holidays and the Wife spend time with the said child as follows:
(v)For half the days of each school holiday period from 11am to 4pm, the days to be agreed but in the absence of agreement for the first half of the school holidays in even-numbered years and the second half of the school holidays in odd-numbered years, supervised by the maternal grandmother, and to occur in a shopping centre.
That the wife be restrained from spending time with the child at any of the homes of her brothers known as [S], [K] or [P] or her parents […] and […].
That in 6 months from the date of these orders, the parties see a Family Consultant of the Family Court of Australia with a view to discussing parenting arrangements and agreeing on changes through a Parenting Plan, if appropriate and recommended by the Family Consultant having regard to the implementation of these orders for a 6 month period from the date of these orders.
In respect of order 3(iii) the Husband will deliver [the child] to the McDonalds in Westfield and collect her from there.
I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore
Associate:
Date:
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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