Ditcher and Fetzer

[2014] FamCA 175

FAMILY COURT OF AUSTRALIA

DITCHER & FETZER [2014] FamCA 175

FAMILY LAW – CHILDREN – Best interests – child has a meaningful relationship with both parents – child has lived primarily with the father since separation – mother seeks that the child live with her for equal time – father seeks that the child live with him for longer periods than with the mother – equal time not reasonably practicable or in the child’s best interests – child lives primarily with father – child’s residence with the mother conditional upon the mother continuing a therapeutic relationship with a psychiatrist

FAMILY LAW – CHILDREN – Parental responsibility – both parties seek equal shared parental responsibility – allegations of family violence do not render the presumption of equal shared parental responsibility inapplicable – proposals for one party to make final decisions in the event of deadlock rejected

FAMILY LAW – PRACTICE & PROCEDURE – Application to invoke section 69ZT(3) dismissed

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 61DB, 62B, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 69ZT
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)
Family Law Rules 2004

Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
Marriage of L & T (1999) 25 Fam LR 590
MRR v GR (2010) 240 CLR 461
Pavli v Beffa (2013) 48 Fam LR 677

APPLICANT: Ms Ditcher

RESPONDENT: Mr Fetzer

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 10619 of 2012

DATE DELIVERED: 25 March 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Brisbane

JUDGMENT OF: Austin J

HEARING DATE: 3, 4, & 5 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pendergast

SOLICITOR FOR THE APPLICANT: Hartley Healy Lawyers

COUNSEL FOR THE RESPONDENT: Ms McMillan QC

SOLICITOR FOR THE RESPONDENT: Cooper Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Page QC

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. All former orders relating to the child L, born … 2011, (“the child”) are discharged.

2. The mother and father shall have equal shared parental responsibility for the child.

3. The child shall live with the father whenever she is not living with the mother.

4. Unless otherwise agreed between the parties in writing, the child shall live with the mother, subject to the mother’s continued compliance with Order 9 hereof:

   (a)Up to and including Sunday 29 June 2014:

   (i)Each week, from 3.00 pm or the conclusion of the child’s attendance at pre-school (whichever is the later) on Thursday until 6.00 pm on Saturday.

   (b)From and including Thursday 3 July 2014 up until the child commences school:

   (i)Each week, from 3.00 pm or the conclusion of the child’s attendance at pre-school (whichever is the later) on Thursday until 6.00 pm on Sunday; and

   (c)From the time the child commences school:

   (i)During school terms, commencing on the first Thursday of each term, each alternate weekend from 3.00 pm or the conclusion of the child’s attendance at school (whichever is the later) on Thursday until the child’s commencement at school on Monday morning (or Tuesday if a long weekend);

   (ii)During school holidays, except the Christmas school holidays, for the first half of such holidays in every odd numbered year, and for the second half of such holidays in every even numbered year; and

   (iii)During the Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an odd numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an even numbered year.

5. For the purposes of implementation of Order 4 hereof, the school holidays are deemed to commence at 9.00 am on the first day following the last day of school term, the holidays are deemed to end at 6.00 pm on the last day preceding the day upon which the child is due to return to school, and the mid point is the day and time halfway between those first and last days.

6. Order 4 hereof is suspended during the following periods:

   (a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will live with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years; and

   (b)Between 5.00 pm on Saturday and the child’s commencement of school on Monday each Mother’s Day and Father’s Day weekends, during which periods the child shall live with the mother on the Mother’s Day weekend and with the father on the Father’s Day weekend.

7. For the purposes of implementing Orders 4 and 6 hereof, unless otherwise agreed in writing between the parties, the parties shall respectively ensure the child’s:

   (a)Collection from pre-school or school, whenever the child’s residence with a party is to commence at or about the conclusion of pre-school or school;

   (b)Return to pre-school or school, whenever the child’s residence with a party is to conclude at or about the commencement of pre-school or school; and otherwise

   (c)Collection from and return to C Shopping Centre.

8. Upon the child’s commencement of school, unless otherwise agreed in writing between the parties, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:

   (a)The mother each Wednesday at 5.00 pm when the child is living with the father, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time;

   (b)The father each Wednesday at 5.00 pm when the child is living with the mother, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure that the child is able to receive the father’s calls on that number at that time; and

   (c)The parent with whom the child is not then living, at 5.00 pm on the child’s birthdays, and for that purpose the parent with whom the child is not living shall telephone the child on the telephone number provided by the other parent for that purpose, and the parent with whom the child is living shall ensure that the child is able to receive the other parent’s calls on that number at that time.

9. The mother shall:

   (a)Do all such things and sign all such documents as may be necessary to maintain her therapeutic care by a psychiatrist, until such time as the psychiatrist certifies in writing the mother is no longer in need of psychiatric care;

   (b)Inform the father, and keep the father informed, in writing of the name and contact details of her treating psychiatrist;

   (c)Irrevocably authorise and instruct her treating psychiatrist in writing to report to the father in writing, at the father’s expense and at the father’s request not more frequently than once every three months, about the mother’s current psychiatric status, the nature of her medication, and her prognosis; and

   (d)Take all reasonable steps to cause the maternal grandmother to inform the father promptly of any admission the mother has to hospital for assessment or treatment in respect of any psychological or psychiatric condition.

10. Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

11. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

12. Leave is granted to the parties to furnish a sealed copy of these orders to:

    (a)The mother’s treating psychiatrist; and

    (b)The principal of any pre-school or school attended by the child.

13. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

14. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

15. Costs are reserved for 28 days.

16. Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ditcher & Fetzer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10619 of 2012

Ms Ditcher

Applicant

And

Mr Fetzer

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The applicant mother and respondent father had a relatively short relationship during which they produced a child who is now slightly older than two years of age. The parties were unable to agree upon various aspects of the child’s care, but the contentious issues progressively fell away during the hearing.

2. By the end of the hearing the single residual dispute was whether the child should live with the parties for equal time or whether she should spend slightly less time in the care of the mother. The distillation of their dispute to that solitary issue rendered pointless the time, effort, and expense they each devoted to the litigation. The number of witnesses they marshalled and the volume of the affidavit evidence they adduced was a waste. It only needlessly exhausted them and depleted their resources.

3. Hopefully, the relatively economical conduct of the final hearing and the manner in which they were finally able to contain the scope of the dispute augers well for their future co-operation over the care and management of the child.

Background

1. The parties began their relationship in August 2010 and commenced cohabitation in March 2011.

2. Their child was born in November 2011. The parties finally separated in November 2012 just as the child was about to attain 12 months of age.

3. Upon separation the mother began living with the maternal grandmother. The father maintained occupation of the family home and the child remained living with him. The parties disagreed over the time the child should spend with the mother and it is common ground the father withheld the child from the mother as they attempted to negotiate an agreement about the child’s care arrangements.

4. Within a few weeks the mother suffered an emotional breakdown for which she was assessed and treated briefly at hospital. When she recuperated sufficiently she commenced these proceedings seeking orders for the child’s recovery from the father and for the child to live with her. The father countered with an application for the child to live with him and for her to spend only supervised time with the mother.

5. The Federal Magistrates Court (as the Federal Circuit Court then was) made interim orders on 13 December 2012 providing for the parties to have equal shared parental responsibility for the child, for her to live with the father, and for her to spend varying amounts of time with the mother each day under the supervision of the maternal grandmother.

6. Orders were also made for a single expert psychiatrist to examine and report upon both parties. The mother was admitted to hospital for further treatment for several weeks in January/February 2013, which vindicated the decision to appoint the single expert psychiatrist.

7. Following release of the single expert psychiatric report in September 2013 and the Family Report in October 2013, the mother made an application to change the existing interim orders. The orders were amended on 12 December 2013 by changing the times the child spent with the mother. The effect of the change was to provide for the child to spend three full days each week with the mother, either under the supervision of the maternal grandmother or at least within the confines of her home. The fresh orders generally correlated with the Family Consultant’s recommendations.

8. Those amended interim orders prevailed until the final hearing in March 2014.

Proposal and evidence of mother

1. The mother abandoned the orders proposed in her Amended Initiating Application filed on 23 January 2014. Instead she tendered a comprehensive minute of orders during final submissions.[1] Her proposal generally entailed the allocation to the parties of equal shared parental responsibility for the child and for the child to live with the parties for equivalent, if not equal, time.

   [1] Exhibit M2

2. The mother acknowledged the need for continued medical supervision for her psychiatric condition and for the father to be kept appraised about her progress. The mother adopted the orders proposed in that respect by the Independent Children’s Lawyer in preference to her own proposal.

3. The mother relied upon:

   (a)Her two affidavits filed on 21 February 2014;

   (b)The affidavit of the maternal grandmother filed on 21 February 2014; and

   (c)The affidavit of the maternal step-grandfather filed on 21 February 2014.

4. The father foreshadowed his intention to object to large swathes of the mother’s affidavit material, but he was unable to premise any objection on any rule of evidence rendered redundant by s 69ZT(1) of the Family Law Act (“the Act”). The father was first obliged to establish the existence of exceptional circumstances in the litigation in order to invoke the operation of s 69ZT(3) of the Act and bring the excluded rules of evidence into play. He was unable to do so. His intended objections were therefore abandoned.

5. The parties agreed the mother had been compliant with medical advice and treatment since her last discharge from hospital in February 2013 and so the mother abandoned reliance upon the affidavits of Dr H and Ms L, both of which were filed on 21 February 2014.

6. The affidavit filed on 25 February 2014 by the mother’s treating psychiatrist, Dr R, was tendered by the mother as an exhibit after it was redacted to ensure its compliance with Rule 15.41 of the Family Law Rules.[2]

   [2] Exhibit M1

Proposal and evidence of father

1. The father pressed for the orders set out within his Response to Amended Initiating Application filed on 4 February 2014, subject to some minor oral amendments expanding the time the child should spend with the mother and dispensing with the need for their supervision.

2. The father’s proposal entailed the parties having equal shared parental responsibility for the child and the child living with him.

3. He proposed the time spent by the child with the mother should immediately increase from one night to two nights each week. The proposed regime expanded again proximately to the child’s fourth birthday and culminated with the child spending “substantial and significant time” (s 65DAA(3)) with the mother by the time she commences school a few years hence in early 2017.

4. The father’s long-standing demand for the time spent by the child with the mother to be supervised by the maternal grandmother, at least until the child’s fourth birthday in November 2015, was abandoned. He hoped the mother would maintain her residence with the maternal grandmother, but did not seek any conditional order to that effect.

5. The father adhered to his proposal that the mother must keep him appraised of details concerning the treatment of her psychiatric condition.

6. The father relied upon:

   (a)His affidavit filed on 21 February 2014; and

   (b)The affidavit of the paternal grandmother filed on 21 February 2014.

Proposal of independent children’s lawyer

1. The Independent Children’s Lawyer tendered a minute of the orders she proposed during final submissions.[3] Her proposal provided for:

   (a)The parties to have equal shared parental responsibility, subject to the father having the right to finally determine any deadlock between the parties over decisions related to the child’s education, and the mother having a similar right of veto in respect of decisions related to the child’s health, medical treatment, and religious instruction; and

   (b)The child living with the parties for equivalent (but not quite equal) time until she begins school in early 2017, and thereafter, the child living with the mother for “substantial and significant time” (s 65DAA(3)) rather than equal time, and for the child to otherwise live with the father;

   [3] Exhibit ICL2

2. The proposal about the child’s residence with the mother was conditional upon the mother:

   (a)Maintaining her residence with the maternal grandmother;

   (b)Continuing her consultation with her treating psychiatrist;

   (c)Adhering to the treatment regime recommended by her psychiatrist;

   (d)Causing her psychiatrist to provide regular reports about her diagnosis, treatment and prognosis to the father; and

   (e)Causing the maternal grandmother to notify the father of any hospital admission she experiences.

Additional evidence

1. The parties and the Independent Children’s Lawyer additionally relied upon:

   (a)The affidavit of the Family Consultant sworn on 30 September 2013, annexing her Family Report dated 27 September 2013; and

   (b)The affidavit of the single expert psychiatrist, Dr B, sworn on 28 August 2013.

2. The Family Consultant and single expert were both cross-examined.

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Act, in which the meaning of a “parenting order” is defined (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

6. In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

1. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

2. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of child – primary considerations

Section 60CC(2)(a)

1. The proceedings were conducted on the basis that the child has meaningful relationships with both her parents from which she has derived, and will continue to derive, much benefit. The orders must therefore preserve and promote those relationships.

2. The father expressly recognised the child had an “excellent relationship” with both parents and it was “most definitely” in her best interests for her to continue having “strong and meaningful relationship[s]” with both parents.[4] He repeated comments of that sort in cross-examination.

   [4] Father’s affidavit, paras 94, 101

3. Although the mother offered no observation about the quality of the child’s relationships with her and the father, and she was not cross-examined about it, there can be no real doubt she recognises the meaningfulness of the child’s relationships with each of them. So much is obvious from her proposal for the child to live for almost equal time in each household.

4. The parties’ impressions are borne out by the Family Consultant’s observations. She found the child to be at ease with both parents and to transfer readily between them.[5]

   [5] Family Report, paras 126-128, 148

Section 60CC(2)(b)

1. No allegations of “abuse” or “neglect” were raised in these proceedings.

2. There was, however, an underlying issue about “family violence”. The mother alleged its commission upon her by the father, but the father denied it.

3. Because these proceedings were commenced in November 2012 the recent amendments to the Act, and in particular to the provisions concerning the definition of “family violence” (s 4AB) and the considerations relevant to findings about the children’s best interests (s 60CC), wrought by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) now apply.

4. The mother made no allegation of the father’s resort to physical violence against her. Rather, she classified the family violence as “emotional” and “verbal” abuse.[6]

   [6] Mother’s primary affidavit, para 164

5. The definition of “family violence” is liable to encapsulate behaviour characterised in that way if the mother subjectively felt coerced, controlled, or fearful because of it (s 4AB(1)). The mother expressly complained to the Family Consultant about feeling controlled and isolated by the father.[7]

   [7] Family Report, para 11

6. Without offering a definitive view, the Family Consultant considered there were “elements of coercive controlling violence within the parents’ relationship”.[8] The single expert considered the father had “obsessional traits” but was unable to offer an opinion about whether any controlling behaviour of the father was an “inherent trait” or a response to the mother’s “psychiatric decompensation”.[9]

   [8] Family Report, para 133

   [9] Affidavit of single expert, page 41/49

7. The father denied he ever acted towards the mother in a manner that could fairly be described as violent. Nevertheless, it should be observed that his attitude towards the existence of family violence within the family was somewhat inconsistent. When conferring with the single expert in June 2013, the father “[did] not describe any violence in the relationship on the part of either side”,[10] but he later deposed in his affidavit to the mother’s “consistently aggressive behaviour” towards him.[11] Why he would ascribe aggressive behaviour to the mother in his evidence, but not raise it when conferring with the single expert remains unexplained. The father acknowledged to the single expert he could be “abrasive at times” and “not as tactful as [he] should be”.[12]

   [10] Affidavit of single expert, page 38/49

   [11] Father’s affidavit, para 100

   [12] Affidavit of single expert, page 40/49

8. In all likelihood, neither party offered deliberately false evidence about their past relationship. More probably, their discrepant evidence was attributable simply to their different perceptions.

9. Even if the mother’s perception was more factually accurate than the father’s perception about the nature of their past relationship, nothing really turns on the discrepancy. It is therefore unnecessary for the Court to determine the factual dispute, despite the mother’s misconceived expectation to the contrary.[13] That conclusion arises for two reasons.

   [13] Mother’s affidavit, para 52

10. Firstly, the mother does not seek to employ any finding of “family violence” for any forensic effect in the proceedings. She does not seek to use it to overcome the presumption of equal shared parental responsibility (s 61DA(2)), because she proposes the parties have equal shared parental responsibility for the child anyway. Nor does she seek to use it to curtail the amount of time or to impose conditions under which the child spends time with the father, because she proposed the child live for at least equal time with the father. The mother therefore necessarily anticipates she will have frequent future interaction with the father in respect of the child. She would not rationally propose such an outcome unless she was reasonably confident she could deal satisfactorily with him without undue risk to the safety of either her or the child.

11. Secondly, the mother acknowledged the father’s conduct that she characterises as “family violence” ceased at about the time of their separation in November 2012. She did not allege the occurrence of any family violence thereafter, even in the broad form she perceives it. The Act requires the Court’s advertence to the need to protect the child against any future harm that might arise through her exposure to family violence (s 60CC(2)(b)). Given the parties’ relationship has not been afflicted by family violence since about the time of their separation some 15 months ago, the risk of its future occurrence continues to diminish with the passage of time.

12. While the risk cannot be categorically excluded, it must follow that the mother does not envisage the child is at any tangible risk of either physical or psychological harm through exposure to family violence by the father.

Best interests of child – additional considerations

1. Many of the considerations prescribed by s 60CC(3) of the Act were not addressed by the parties or Independent Children’s Lawyer, either in evidence or submissions. No doubt that was because not all were relevant to the outcome of the proceedings, particularly as the contentious issues narrowed so dramatically. It is therefore only necessary to address those considerations that are now relevant.

2. The pre-eminent issue in the proceedings was the stability of the mother’s emotional health, about which there was an abundance of evidence.

3. It is common ground that on 12 November 2012, in the aftermath of the parties’ separation and while the father retained the child from the mother, the mother was conveyed to hospital for assessment and treatment in relation to her seriously deteriorated emotional condition.

4. Although the mother could not recollect it, medical records proved she presented to her general practitioner and a hospital on successive days some weeks later in late November 2012 experiencing anxiety.[14]

   [14] Exhibit ICL1, Part 1, pages 6, 7, 10

5. The mother later suffered a recurrence of her emotional deterioration and was admitted to hospital for several weeks between 18 January and 8 February 2013. The mother conceded she experienced an “extreme mental breakdown”.[15] Although the mother believed her treatment was voluntary,[16] her admission was in fact pursuant to an involuntary treatment order.[17] 

   [15] Mother’s affidavit, para 39

   [16] Mother’s affidavit, para 39

   [17] Family Report, para 37; Exhibit ICL1, Part 2, pages 42-43; Exhibit M1, para 1

6. The mother asserted she had “no previous psychiatric or significant medical history” before her first hospital attendance in November 2012,[18] but that is not entirely correct. When treated at the first hospital attendance in November 2012 the mother provided a history of experiencing anxiety in her teenage years and a panic attack in 2009 for which she was medicated for a year.[19] However, the mother had never before experienced the acute symptoms of the breakdown which necessitated her hospital presentation in November 2012.

   [18] Mother’s affidavit, para 272

   [19] Exhibit ICL1, Part 2, page 3

7. The mother’s history was reviewed by the single expert. The evidence he furnished to the Court in his report was elaborated during his cross-examination. His early provisional diagnosis was confirmed. I accept his evidence as accurate and reliable.

8. There is no doubt the mother suffers from a “serious psychiatric illness”, which the single expert labelled “psychotic depression”. He explained it was a depressive condition which had psychotic features and was therefore an aggravated form of clinical depression. The mother is medicated with both anti-psychotic and anti-depressive medication.

9. The single expert considered the mother’s emotional deterioration between August 2012 and February 2013 represented the onset and her experience of a single episode of psychotic depression.

10. The mother’s condition is currently in remission, but the remission is induced pharmaceutically not naturally. The condition is biological in origin and so it responds favourably to medication. External stress factors “only play a minor role in precipitation of such a serious episode” of the psychotic depression suffered by the mother in late 2012 and early 2013.[20]

    [20] Affidavit of single expert, page 48/49

11. In the single expert’s view:[21]

    It would be a mistake for the mother to consider that her illness is psychogenic with the implication that once she is away from the situation of stress she may not be in need of biological treatment.

    [21] Affidavit of single expert, page 48/49

12. Whilst the mother is medicated and well she enjoys “complete restitution of functioning” and there is no reason why she cannot be “an appropriate parent and have the child in her care for substantial periods of time unsupervised”.[22]

    [22] Affidavit of single expert, page 47/49

13. Recurrence of the condition is difficult to predict. In his report, the single expert said recurrence is common, but no recurrent pattern has yet emerged for the mother.[23] However, during cross-examination the single expert said there was a high chance of the mother suffering a further episode of psychotic depression, but it could be years into the future.

    [23] Affidavit of single expert, page 47/49

14. The single expert said he expected the mother could be weaned from her small dose of anti-psychotic medication in the near future, but she should not be weaned from her larger dose of anti-depressant medication for at least another year or so.

15. It was implicit from the single expert’s evidence that the mother’s condition will remain in remission whilst she remains medicated, but once her course of medication is ceased the chance of the condition recurring arises.

16. Self-evidently, the child’s safety is compromised if she is alone with the mother whenever she suffers a recurrence of psychotic depression. It is therefore important to minimise the chance of the mother suffering a recurrence of her condition. That can be achieved by the mother following advice about complying with her medication regime and, once her course of medication ceases, she being alert to the onset of symptoms that herald another episode so she may seek out the medical assistance she needs.

17. The mother’s insight into the nature and severity of her condition is integral to her proper medical management, and hence the safety of the child. Unfortunately, the mother’s insight about her condition is not as well developed as it should be. The single expert said she lacks full understanding about the cause and severity of her illness because she attributes her condition to situational stressors rather than its biological origin. While situational stressors may precipitate an episode of psychotic depression, she has a significant biological predisposition to the illness.

18. That opinion is well founded. The mother was at pains to attribute her illness in late 2012 and early 2013 entirely to the oppressive and manipulative behaviour of the father.[24] The mother and maternal grandmother both endorsed their belief in cross-examination that the father’s behaviour induced the stress which was the cause of the mother’s breakdown. The risk to the child arises from the prospect of the mother ceasing her medication and severing contact with her psychiatrist if she believes she is now relieved of the stress that induced her condition. The risk is not ethereal. In the past, the mother decided to discontinue her prescribed medication in 2009 without confirmatory medical advice and she declined follow-up treatment from the hospital after her initial presentation in November 2012.[25]

    [24] Mother’s affidavit, paras 34, 37, 52.18, 52.23, 271; Family Report, para 74

    [25] Exhibit ICL1, Part 2, pages 3, 10, 11

19. The mother was resistant, perhaps understandably, to the idea that she suffers from a serious psychiatric condition. The single expert said it was normal for a patient to question the accuracy of the diagnosis of such a serious condition and normal to contemplate the need for long-term medication. While that might be normal behaviour, it is not good judgment. More than a year has now passed since the mother’s episode and she can no longer reasonably doubt either her biological predisposition to, or the severity of, her condition. She is still being medicated, she has had the single expert’s written opinion to consider for over six months, and she has now heard the single expert’s clear enunciation of her diagnosis and prognosis under cross-examination.

20. The single expert said the mother’s treatment by her psychiatrist, Dr R, had been appropriate to date. It was uncontentious the mother’s supervision and treatment by Dr R has occurred in the context of her being a publicly-funded patient under a mental health plan and her entitlement to such free care under Dr R will likely soon cease. That is problematic because the single expert said it was important for the mother to remain under the care of a psychiatrist. For her to do so it will be necessary for her treating psychiatrist to be privately funded.

21. The mother acknowledged in cross-examination the need for her to remain under the care of a psychiatrist to properly monitor her progress and, mercifully, the maternal grandmother said she would afford the mother any financial assistance necessary to ensure her continuing care under a psychiatrist.

22. The parties and Independent Children’s Lawyer recognised the desirability of the father being kept appraised about management of the mother’s medical condition. Interim orders were previously made to that effect in reliance upon the Family Consultant’s recommendation.[26] The mother was prepared to have details of her treatment divulged[27] and she ultimately endorsed the Independent Children’s Lawyer’s proposal for her treating psychiatrist to periodically report about her diagnosis, treatment and prognosis to the father as a condition of the child’s future interaction with her.[28] The father’s proposal was similar.[29] Orders are therefore made to that effect, albeit not in identical terms to those proposed.

    [26] Orders 5-7 made on 12 December 2013; Family Report, page 59/59

    [27] Mother’s affidavit, para 102.4

    [28] Exhibit ICL2, Orders 9(d), 10

    [29] Response, Orders 11, 14(b)

23. The single expert recommended against the mother’s psychiatrist reporting periodically to the father, for logical reasons, but that alone is insufficiently compelling to reject the joint proposals of the parties and Independent Children’s Lawyer. There is a risk of the mother not being entirely candid with her psychiatrist if she is aware her confessions to the psychiatrist about any deterioration in her condition might be reported back to the father, and her therapeutic relationship with the psychiatrist being thereby compromised, but that risk carries less weight than the risk of harm posed to the child if the mother’s future medical condition goes entirely unchecked.

24. The mother also indicated her agreement with the Independent Children’s Lawyer’s proposal for her to cause the maternal grandmother to inform the father of any hospital admission she experiences,[30] provided the admission relates to assessment or treatment of an apparent psychological or psychiatric condition. The maternal grandmother said in cross-examination she could be relied upon to inform the father of any such hospital admission. Although the father noted the mother’s condition may preclude her compliance with such an order, he accepted it was preferable to have an order to that effect than no order at all. The first the father knew of the mother’s hospitalisation for several weeks in early 2013 was by way of letter he received at about the time of her discharge.[31]

    [30] Exhibit ICL2, Order 9(e)

    [31] Family Report, para 92

25. Aside from the evidence about the mother’s mental health, it was not suggested either party was unable to adequately provide for the child’s physical, intellectual or emotional needs.[32]

    [32] Family Report, para 143

26. There was a vociferous debate in the parties’ affidavits about the manner in which the father acquired control over the child at the time of the parties’ separation in November 2012. The mother alleged the father maintained the child in his care and belligerently denied her any interaction with the child unless she capitulated to his terms,[33] although the father denied any sophistry on his part.[34] In all probability, just as the Family Consultant suspected,[35] the mother’s perception was correct and the father was tactically manipulative, but nothing now turns on any finding to that effect. What then occurred does not influence the outcome of the proceedings because the child has lived primarily with the father over the last 15 months, the child enjoys an equally good relationship with both parents, and the mother now acknowledges the child should live with the father for not less than equal time.

    [33] Mother’s primary affidavit, paras 24-37, 254-256; Mother’s supplementary affidavit,

    Annexures DMD-02, DMD-04, DMD-10, DMD-15; Family Report, para 31, 79

    [34] Father’s affidavit, paras 78-79, 90, 139-140; Family Report, paras 27, 94

    [35] Family Report, para 132

27. The Family Consultant recommended that the parties participate in a post-separation parenting program.[36] The recommendation was adopted and an interim order was made to that effect.[37] The mother deposed to her participation in such a program,[38] and the father confirmed his participation in such a program during his cross-examination. It is therefore unnecessary to make any further order.

    [36] Family Report, para 138

    [37] Order 8 made on 13 December 2013

    [38] Mother’s affidavit, para 102.7

Conclusions and orders

1. The presumption of equal shared parental responsibility applies. Although the mother refused to dispense with her belief about the father’s commission of family violence towards her, for reasons already explained, that is really a matter of honest perception rather than proven fact. There are no reasonable grounds to believe the father engaged in family violence so as to render the presumption of equal shared parental responsibility inapplicable (s 61DA(2)).

2. Even if that conclusion is erroneous, the error produces no anomaly since both parties advocated for the allocation to them of equal shared parental responsibility for the child. They each regarded that outcome as reflective of the child’s best interests and their mutual view about the suitability of an order allocating equal shared parental responsibility is justified by the evidence.

1. The father acknowledged the parties communicate both orally and in writing, either by text message or email. Their communication is civil and they have been able to negotiate most arrangements concerning the child with few difficulties.[39] The father and mother both said much the same thing to the Family Consultant.[40]

   [39] Father’s affidavit, paras 147-155

   [40] Family Report, paras 86, 99-101

2. Both parties endorsed those sentiments during their cross-examination. The father said their communication was “reasonably effective”. When it was suggested to him the parties are civil he replied “absolutely”. The mother said she could not recall any confrontation with the father since the time of their separation. She considered the changeovers of the child over the past year had gone “quite well” because the parties were “civil”. She said she was confident the parties had made progress in their ability to communicate constructively about the child and believed they had so far generally reached agreement about matters related to the child. She was able to put aside the rancour she felt towards the father for the coercive manner in which she perceived he treated her in the past.

3. The parties’ mutual proposals were made in the context of them having equal shared parental responsibility for the child pursuant to interim orders made in December 2012,[41] which situation was not altered by the subsequent interim orders made in December 2013.[42] The interim allocation of equal shared parental responsibility must be disregarded when making final orders (s 61DB), but that does not preclude the attribution of weight to the fact that both parties want equal shared parental responsibility in the future, having experienced that situation over the last 15 months.

   [41] Order 1 made on 13 December 2012

   [42] Order 1 made on 12 December 2013

4. The Family Consultant did not make any recommendation about the allocation of parental responsibility in the Family Report, but when asked about it in cross-examination she expressed some reservations about the successful exercise of equal shared parental responsibility. She considered there was an imbalance of power in their relationship and she was doubtful the parties could reach genuine consensus about issues related to the child. Nonetheless, she recognised it was preferential for the parties to make joint decisions about the child. She regarded the allocation of sole parental responsibility to be an inferior but pragmatic option.

5. In the face of the parties’ united proposal, the mere reservations of the Family Consultant are not sufficient to rebut the presumption of equal shared parental responsibility (s 61DA(4)). The orders therefore allocate equal shared parental responsibility to the parties.

6. Since the parties agree to accept and exercise equal shared parental responsibility, there is no need to make the numerous other orders sought by them and the Independent Children’s Lawyer which purport to qualify the manner in which they discharge their responsibilities for the child.[43] Such qualifications are entirely superfluous. The manner in which the parties should exercise equal shared parental responsibility for the child is prescribed with sufficient clarity by the Act (ss 65DAC, 65DAE).

   [43] Exhibit M2, Orders 30-38; Response, Order 13; Exhibit ICL2, Orders 17-25

7. The express proposals of the father,[44] mother,[45] and Independent Children’s Lawyer[46] for one party or the other to have ultimate authority to break any deadlock between the parties over decisions related to some aspects of the child’s care, welfare and development is inimical to the concept of equal shared parental responsibility (see Pavli v Beffa (2013) 48 Fam LR 677 at [15]-[16], [38], [49]). If one party has the power to unilaterally break a deadlock then the allocation of parental responsibility is not “equal” at all and the knowledge such power is vested in one party is an inherent disincentive for that party to exercise the parental responsibility with the “genuine effort” to compromise demanded by law (s 65DAC).

   [44] Response, Order 6

   [45] Exhibit M2, Order 7

   [46] Exhibit ICL2, Order 2

8. It is also entirely unnecessary to impose injunctions upon the parties about the manner in which they may communicate with one another.[47] There is no evidentiary basis for such orders. Neither party was cross-examined about the need for such injunctions, which is understandable given their evidence about the relative conviviality of their communication. The Family Consultant opined it might be helpful for them to confine their communication to emails, but that remark is hardly sufficient to support the imposition of injunctions. No such orders are made.

   [47] Exhibit M2, Orders 41-43; Exhibit ICL2, Orders 27-29

9. Given the allocation of equal shared parental responsibility for the child to her parents, the Court is obliged to consider residential options under which the child lives for equal time with the parents, or alternatively, lives predominantly with one and spends substantial and significant time with the other (s 65DAA).

10. Under the existing interim orders, the child presently spends three full days with the mother each week, but she only stays overnight with the mother once each week on Fridays. The child spends the remaining days of the week, including nights, with the father. The child attends day-care on one of the days she lives with the father and the mother takes the child to a play group on one of the days she visits her.[48]

    [48] Family Report, paras 43, 58, 121

11. The interim orders last made in December 2013 expanded the child’s time with the mother, as recommended by the Family Consultant,[49] who envisaged and recommended even more expansion of the child’s time with the mother after the elapse of a few months.[50] She elaborated that view in cross-examination. She recommended the child begin spending two nights per week with the mother forthwith and she was “comfortable” with the expansion of that regime to three nights per week within the next few months.

    [49] Family Report, para 149, page 59/59

    [50] Family Report, para 150, page 59/59

12. The parties and Independent Children’s Lawyer uniformly agreed the time spent by the child with the mother should be immediately expanded to include two nights each week. However, they differed about any further changes. The mother and Independent Children’s Lawyer both proposed expansion to three nights per week with the mother within the next couple of months,[51] apparently in reliance upon the Family Consultant’s oral evidence, but the father proposed the regime not be changed until the child turns four years of age when she would then spend three nights per fortnight with the mother.[52]

    [51] Exhibit M2, Order 11.2; Exhibit ICL2, Order 5(b)

    [52] Response, Order 7(b)

13. Section 65DAA mandates the Court’s initial consideration of the child living with the parties for equal time. The proposal of the mother and Independent Children’s Lawyer is almost, but not quite, equal time, but the father’s proposal is clearly not.

14. The father submitted that an equal time residential regime was neither practicable nor in the child’s best interests. I accept that submission for some, but not all, the reasons advanced.

15. Most importantly, the Family Consultant advised, without challenge, that any changes to the child’s routine should be introduced gradually rather than suddenly.

16. Additionally, the parties need a more co-operative parenting partnership before an equal time arrangement is suitable for the child. While the parties are sufficiently courteous to exercise equal shared parental responsibility and negotiate “major long-term issues” (ss 4, 65DAC) in respect of the child, a good deal more trust and collaboration is required to make equal time an advantageous residential arrangement for the child.

17. Significantly, the parties live quite some distance apart and neither presently intends moving. The mother lives with the maternal grandmother and intends to continue doing so “for the foreseeable future”, as she receives substantial family support in that environment.[53] The maternal grandmother was content for the mother to remain resident with her indefinitely. The father remains in occupation of the home formerly occupied by the parties. It was common ground that approximately 45 minutes driving time separates the two households. While the distance between the parties’ households is not an impediment to the child living with the parties for equal time now, it certainly will be an impediment when the child starts school in early 2017. The child will need to attend school in relative proximity to one home and therefore live predominantly with one parent by early 2017. There is little logic in having the child live for equal time between the parties for a couple of years before reverting to an arrangement under which she lives predominantly with one parent. There should desirably be some consistency in the child’s residential arrangements into the future, even though some form of change will inevitably be necessary in early 2017.

    [53] Mother’s affidavit, paras 56, 141-142; Family Report, para 51

18. Since an equal time arrangement is not implemented, it is necessary to then consider the suitability of the child living predominantly with one parent and spending substantial and significant time with the other. There is no doubt such an arrangement is both practicable and in the child’s best interests. The proposals of the parties and Independent Children’s Lawyer all reflected that. The “substantial and significant time” can indeed be “substantial” and “significant”.

19. The mother was the child’s primary carer during the parties’ relationship, although the father and extended family members became progressively more involved with the child’s care from about August 2012 when the mother’s mental health deteriorated. The father has undoubtedly been the child’s primary carer since the parties’ separation in November 2012. Irrespective, the child is securely attached to both parents. The father is wrong to believe that child is primarily attached to him.[54]

    [54] Father’s affidavit, para 5; Family Report, para 97

20. Both parties adopt similar daily routines for the child,[55] which will no doubt help the child easily manage the transitions between their households.

    [55] Family Report, para 122

21. The proposals of the mother and Independent Children’s Lawyer acknowledge that the child should spend slightly more time in the care of the father. Of course, the father envisages the child spending significantly more time in his care. There is consequently no dispute the child should live predominantly with the father. The real debate was about the proportion of time the child should spend with the mother.

22. It is convenient to firstly deal with an issue of nomenclature. I accept the Independent Children’s Lawyer’s submission that the orders can and should reflect that the child lives with both parents, albeit for longer periods with one than the other. That is preferable to the orders stipulating the child’s residence with the father and her spending time with the mother.

23. The orders provide for the child to immediately begin living with the mother for two nights each week, as all agreed should occur. Although she is presently only staying one night per week with the mother, she is already spending three full days each week with the mother.

24. The arrangement expands to incorporate three nights per week approximately three months hence, which generally accords with the proposals of the mother and Independent Children’s Lawyer and the evidence of the Family Consultant. That arrangement will remain in place until the child begins school.

25. The child will begin living with the mother each Thursday afternoon after she finishes pre-school for the day. That was the father’s sensible proposal. The visit to the mother ends on Saturday evening for the next three months, and then on Sunday evening thereafter.

26. The parties and Independent Children’s Lawyer all wanted additional provision made for the parties to each have occasional week-long holidays with the child on the fulfilment of certain conditions, but the conditions were convoluted and difficult to make prescriptive. It was acknowledged the orders should be elegantly simplistic. Accordingly, no orders are made about holidays before the child commences school. Both parties are afflicted by that omission so they may reach agreement otherwise about holidays if they desire.

27. When the child begins school she will begin living with the mother each alternate weekend for four nights and for half of each school holiday period. The alternate weekends begin on Thursday afternoon and end at the commencement of school the following Monday. That will ensure continuity of the arrangement under which the child begins her visits with the mother after finishing school on Thursday afternoons. That will oblige the mother to convey the child to and from school on consecutive Thursday afternoons, Friday mornings, Friday afternoons, and Monday mornings each fortnight. That amount of travel to and from school will not be too onerous for the child at the age she will then be and will permit the mother to become integrally involved in the daily routine of the child’s education, which is the designated purpose of a child spending substantial and significant time with a parent (s 65DAA(3)).

28. No provision is made for the child to live with the mother for any period in intervening weeks. A midweek visit of only a few hours would be pointless because of the travelling involved. An extra midweek overnight stay will start to become too disruptive to the child’s school attendance. More time on the intervening weekend would deprive the child of equivalent leisure time with the father on weekends.

29. Provision is made for special occasions such as Christmas, Mother’s Day, and Father’s Day. The parties and Independent Children’s Lawyer all wanted such provision made, but they all made different proposals and none were the subject of any evidence, cross-examination, or submission. The orders therefore mandate simple, equivalent arrangements at those times.

30. As earlier explained, the child’s residence with the mother is made conditional upon the mother maintaining her therapeutic relationship with a psychiatrist, keeping the father informed of the psychiatrist’s identity, authorising the psychiatrist to report upon her condition periodically to the father at his request and expense, and causing the father to be informed of any hospital admission she has for assessment or treatment of her psychological or psychiatric condition. The Court has power to make orders of that type since they are stipulated as pre-conditions to the operation of a parenting order (see Marriage of L & T (1999) 25 Fam LR 590 at 603-606; Jacks & Samson (2008) FLC 93-387 at [200]-[226]).

31. The child’s residence with the mother is not made conditional upon the maintenance of her residence with the maternal grandmother, as the Independent Children’s Lawyer proposed.[56] While it is likely the mother will continue to live with the maternal grandmother for the foreseeable future, the evidence fell short of justifying an injunction demanding such a permanent arrangement. The mother certainly did not desire indefinite restriction of that sort and the father abandoned his earlier proposal to that effect.

    [56] Exhibit ICL2, Order 9(a)

32. The father and Independent Children’s Lawyer both proposed use of C Shopping Centre and the child’s future school as the changeover venues. The father adduced evidence about the convenience of the C Shopping Centre venue,[57] about which he was not challenged. The present interim orders make provision for changeovers to occur at the C Shopping Centre venue[58] and the evidence does not warrant any variation to that arrangement, at least prior to the child’s commencement at school. The mother belatedly abandoned her proposal for the child to be exchanged between the parties at D Shopping Centre, presumably because she realised she offered no evidence to explain why that venue was preferable. She joined in the proposal of the father and Independent Children’s Lawyer about the changeover venues. Orders are made to that effect.

    [57] Father’s affidavit, paras 142-143

    [58] Order 4 made on 12 December 2013

33. The orders make provision for the child to communicate by telephone with both parents. However, the orders do not commence operation until the child starts school, because before then the child will live with each parent for several days each week and extra interaction by telephone is unnecessary. When the order commences operation the child will communicate with the mother on Wednesday every week during which the child lives with the father and the child will communicate with the father each Wednesday the child lives with the mother during school holiday periods. The child will communicate by telephone with whichever parent she is not living on her birthday.

34. The remaining orders could not be the subject of reasonable resistance.

35. The father sought a costs order against the mother.[59] The issue was not addressed in the evidence or in submissions, so costs are reserved for 28 days.

    [59] Response, Order 15

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 25 March 2014.

Associate: 

Date:  25 March 2014