Elam and Elam - [2010] FMCAfam 1374

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ELAM & ELAM

[2010] FMCAfam 1374

FAMILY LAW – Interim arrangements for care of children aged 11 & 9 – father suffers psychiatric condition – should father’s time with children be supervised or involve overnight periods – meaningful relationship – assessment of risk – best interests.

Family Law Act 1975, ss.60B; 60CC; 61DA; 65DAA

Goode & Goode (2006) FLC 93-286

Applicant:

MR ELAM

Respondent:

MS ELAM

File Number:

ADC2623 of 2010

Judgment of:

Brown FM

Hearing date:

6 December 2010

Date of Last Submission:

6 December 2010

Delivered at:

Adelaide

Delivered on:

10 December 2010

REPRESENTATION

Counsel for the Applicant:

Mr Boehm

Solicitors for the Applicant:

White Berman & Co

Counsel for the Respondent:

Ms Lewis

Solicitors for the Respondent:

Sykes Bidstrup

ORDERS

The parties competing applications be fixed for final hearing on 8, 9 and 10 June 2011.
The applicant file and serve all affidavit evidence he proposes to rely on at trial together with an updated statement of his financial circumstances on or before close of Registry filing on 25 May 2011.
The respondent file and serve all affidavit evidence she proposes to rely on at trial together with an updated statement of her financial circumstances on or before close of Registry filing on 1 June 2011.
On or before 25 May 2011 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.

UNTIL FURTHER OR OTHER ORDER

The children of the marriage [X] born [in] 1999, [Y] and [Z] both born [in] 2001 (hereinafter referred to as “the children”) live with the mother.
The children spend time with the father as follows:
(a)From 4:00pm on Fridays to 7:00pm the following Saturday in alternate weekends;
(b)From 3:00pm on 25 December 2010 until 7:00pm on 26 December 2010;
(c)From 3:00pm on 1 January 2011 until 3:00pm on 2 January 2011;
(d)For a period of seven (7) consecutive days, the days to be nominated to the mother by the father, during January of 2011 subject to the conditions set out in order (11) hereof;
(e)From 4:30pm until 7:30pm on 14 February 2011;
(f)From 9:00am on 22 April 2011 until 6:00pm on 23 April 2011; and
(g)At any other times and on any other conditions as may be agreed between the parties.
The father’s time pursuant to order (7)(a) is suspended during the operation of the time he spends with the children provided by orders 7(b), 7(c), 7(d) and 7(f).
The father collect the children from the mother’s residence at the commencement of each period specified in order (4) hereof in the presence either of his mother, Ms E or his sister, Ms I and either the aforesaid Ms E or Ms I be present with the father during the first two (2) hours of his time with the children as specified in order (7) above.
The father is restrained and an injunction issues restraining him from smoking cigarettes or permitting any other person to smoke cigarettes in the immediate vicinity of the children or in any motor vehicle or confined space or indoor area whilst the children are present.
The father’s time with the children specified in order 7(d) hereof shall take place subject to the condition that the father and children are at the Elam family holiday home at [L] and a member of the father’s family is present at all times.
During all times the children are in the care of the father he shall ensure that the children attend their regular extra curricular activities including basketball and any other sports in which they participate.
The father have telephone communication with the children at 9:00pm on each Tuesday and Thursday of the week with the father to make the telephone call to the mother’s residence and the mother to ensure the children are available to take the telephone call concerned.
It be a condition of the father spending time with the children that he:
(a)Undergo all such treatment as he is reasonably required to undertake at the direction of his treating psychiatrist; and
(b)Continue to take all such medication as he is prescribed to take by his treating psychiatrist or any other general medical practitioner whom he consults from time to time.
The mother is authorised by this order to consult with the father’s treating psychiatrist, Dr V and to receive any information, concerning the father’s psychiatric condition and treatment, which she may request of Dr V.

IT IS NOTED that publication of this judgment under the pseudonym Elam & Elam is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC2623 of 2010

MR ELAM

Applicant

And

MS ELAM

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to parenting arrangements for three children, [X] born [in] 1999 and twins, [Y] and [Z] both born [in] 2001, particularly what amount of time they should spend with their father, Mr Elam and what conditions, if any, should attach to that time.
The children currently live with their mother, Ms Elam. It is her position that the father suffers from a psychiatric condition, which renders him unreliable and unpredictable.
As such, she advocates that any time the children spend with their father be subject to the strict supervision of one of his relatives or, at the very least, a relative be present, in the father’s home, during any periods of time the father spends with the children.
If the court adopts the position advocated by the mother, it will mean that it will be difficult for the father to spend overnight periods during school terms and extended holiday periods, with the children. As such, the father argues that this will mean that the children’s paternal relationships may not reach their full potential, in terms of the level of meaning, which the children will attach to them. The father asserts such an outcome will be contrary to the children’s best interests.
On the other hand, it is the mother’s position that, due to what she has deposed about the father’s past behaviour both towards the children and to her, during the parties' marriage, the court needs to take a cautious approach in respect of any arrangements it makes for the father to spend time with the children. If the court does otherwise, she believes it may expose all three children to an unacceptable risk of coming to some form of either physical or psychological harm, as a result of the father’s unpredictable and possibly neglectful behaviour.
These proceedings are directed to resolving this issue on an interim basis. At this stage, the court does not have the opportunity to conduct an exhaustive hearing into all the evidence which the parties may wish to put before it. As a consequence, at this stage, it is difficult, if not impossible for the court to make concluded findings of fact about issues in dispute between parties. In this particular case, there are many such contentious issues.

Background

The father was born [in] 1965. The mother was born [in] 1970. The parties married [in] 1992.
There is no dispute, between the parties, that they finally separated on 15 January 2010. At this stage, the father left the parties’ former family home at Property F and went to live with his parents. The children concerned remained living with the mother in the Property F home.
The father commenced these proceedings on 13 July 2010. In addition to orders concerning [X], [Y] and [Z], he seeks orders which would settle the division of the parties’ property.
In respect of the children, he seeks orders that would see [X], [Y] and [Z] continuing to live predominantly with their mother but spending time with him on alternate weekends, during school terms, and for half of each school holiday period, as well as on special occasions. As previously indicated, he is opposed to his time with the children being either formally or informally supervised.
The mother is employed as [omitted] in Adelaide. The father is not currently employed. He concedes that he was diagnosed with schizophrenia and depression as a teenager. It is his position that he has received regular psychiatric treatment for his condition and is compliant with medication prescribed for him. As such, he asserts his psychiatric condition is stable. The mother does not agree.
Shortly after the parties separated, the father approached his current solicitor and asked him to raise formally with the wife the possibility of him spending time with the children. The mother’s solicitor responded to this overture on 9 February 2010. At that stage she raised her concerns about the father’s psychiatric condition and her view that he did not take his medication as prescribed. She also complained that the father had issues relating to excessive gambling.
In addition, the mother was aware that the father had received psychiatric treatment from Dr V and had been admitted to the [omitted] Clinic and [omitted] Hospital, on separate occasions, in 2009. In these circumstances, she sought that the father provide her with a psychiatric report from Dr V, giving details of the following matters:
·full details of the medical condition suffered by the father;
·details of the medication prescribed for the father, particularly any side effects relating to it;
·whether the father was able to adequately care for and supervise the children, notwithstanding his medical condition and the effects of any medication prescribed for him;
·whether the father’s medical condition posed any risk to the children, particularly whether any such risk was exacerbated by any non-compliance with the taking of medication prescribed for him.
In the absence of such a report, the mother was not prepared to consider the father spending time with the children. Accordingly, in mid-2010, the father’s solicitors took steps to commission the necessary report from Dr V. It was received by the father’s solicitors in early June of 2010. It was provided to the mother’s solicitors shortly afterwards. The receipt of the report and the mother’s response to it seem to have been the catalyst for the father’s application to the court.

a) Dr V’s report

Dr V is a psychiatrist. He began treating the father in April of 2006. Prior to this time, the father had been treated by Professor G.

Professor G is now retired from practice.
Professor G had diagnosed the father as suffering from schizophrenia, paranoid subtype. Dr V concurred with this diagnosis. Professor G had prescribed the father with anti-psychotic medication, which Dr V had continued.
In his report, Dr V provided details of his treatment of the father during 2009. In the early part of 2009, the father complained to Dr V of feeling anxious and mildly depressed. This had occurred following a disagreement in the father’s workplace. At this stage, Dr V found no evidence of symptoms suggesting a relapse of Mr Elam’s schizophrenia.
Dr V continued to see the father during the remainder of 2009. In May of 2009, the anti-psychotic medication, trifluoperazine, previously prescribed for the father, became unavailable. In these circumstances, a new anti-psychotic ziprasidone was prescribed for him, together with an anti-depressant medication. The father requested admission to the [omitted] Clinic in order to facilitate this change in treatment. He was an in-patient at the Clinic for about a week at the end of May 2009.
Following his discharge from the [omitted] Clinic, the father reported some side effects, which he linked to the change in medication. He complained of being irritable towards members of his family and of being tired in the morning. However, Dr V found no evidence of a recurrence of symptoms of schizophrenia.
In September of 2009, Dr V reports that the father informed him that he had changed his medication of his own volition and had returned to his previous medication, which had become available once again. The father further reported to Dr V that he felt better and more settled on his old medication and was sleeping well.
Importantly, Dr V saw the father immediately following his separation from the mother, in January of 201. At this stage he was described as being somewhat depressed in affect but his behaviour was found to be appropriate. Again, Dr V found no evidence of “overt signs suggestive of a recurrence of symptoms of schizophrenia”. At this stage Dr V advised Mr Elam to continue with the current medications prescribed for him.
In his report, Dr V reported as follows:
“The last review occurred in April 2010 when Mr Elam reported that he felt well within himself. He told me that his depression improved after moving out of the marital home. He told me that he now stayed with his parents. Unfortunately, his ex-wife had stopped him from having regular access to his children since he left the family home in January 2010 and this had been quite upsetting to him.
Again on mental state examination Mr Elam presented as being reactive in affect. There is no evidence of overt signs suggestive of a recurrence of symptoms of schizophrenia. In view of his stable mental state, Mr Elam was advised to continue the current medications as prescribed, to which he consented.”[1]
[1] See Dr V’s report filed as an attachment to the father’s affidavit – Exhibit “H” page 5
Dr V further opined that the symptoms of Mr Elam’s schizophrenia appeared to be well controlled with the trifluoperazine, which had been prescribed for him. The only side effects of this medication, which

Dr V alluded to, were the potential for its users to develop minor involuntarily movement disturbances of the mouth and of the tongue. In these circumstances, Dr V did not believe there would be any impediment to the father being able to drive a motor vehicle, whilst on his current medication regime.
In respect of the issue of whether the father would be able to properly manage the children, in an unsupervised setting, Dr V provided the following opinion:
“I am not aware of any episodes of severe behavioural disturbance or other inappropriate behaviour since I took over Mr Elam’s care in 2006. On the contrary, Mr Elam’s mental state appeared to have been stable. There is also no history of physical violence or any other behaviour that would preclude Mr Elam from caring and supervising his children, provided that he takes his medications as prescribed. As such I consider that your client would be able to care for and supervise his children on an unsupervised basis.”[2]
[2] Ibid at page 8
As could be regarded as axiomatic, Dr V indicated that, in the event the father did not take the medication prescribed for him, there was the potential for a relapse of his schizophrenic symptoms, which would have consequences for his ability to properly manage and care for the children. However, he provided the following information in respect of this issue:
“As with any of the major mental illnesses, schizophrenia included, the treatment is based on the affected person taking medication(s) on a regular basis. In case Mr Elam would decide to discontinue the antipsychotic medication, I would be concerned about the potential for relapse of symptoms of the schizophrenia, which in turn could potentially effect his ability to care for and supervise the children.”[3]
[3] Ibid at page 9

b) The hearing of 3 August 2010

Notwithstanding the production of Dr V’s report to the mother, she was not prepared to consider the father spending time with the three children concerned. As a consequence of this decision, the father commenced proceedings, in this court, on 13 July 2010. His application was given an expedited hearing date of 3 August 2010.
At this stage, Mr Elam sought final orders in respect of both property and children’s issues. In the interim, he sought orders that the three children spend time with him on alternate weekends, during term time and for half of each school holiday period.
In the light of the mother’s concerns regarding his psychiatric condition he proposed, as a pre-condition of him spending any time with the children, that he continue with both the psychiatric treatment and medication prescribed for him.
Although, in strict terms, the husband’s proposed orders did not make reference to the need for his time with the children to be supervised, in support of his application he filed two affidavits from his mother Ms E and his sister Ms I respectively, who both indicated their willingness to supervise the father’s time with the children.
The mother responded to this application on 23 August 2010. It was her position that the father should spend only daylight hours with the children and each such period should be supervised by the father’s mother, Ms E. She wished the children to be collected and returned at her home for each such period of time.
To their mutual credit, the parties were able to resolve the interim issues arising between them consensually on 3 August 2010. Essentially, this was because the father was prepared to accede to the mother’s position that his time with the children should be confined to daylight hours and be subject to the supervision of either his mother or sister.
Accordingly, on 3 August 2010, it was ordered by consent that the father spend time with [X], [Y] and [Z], on alternate Saturdays, between 10:00am and 6:00pm. In addition, orders were made enabling Mr Elam to telephone the children on Tuesday and Thursday evenings.
However, it is clear from the tenor of these orders, that, from the father’s perspective, this arrangement was intended to be a temporary one, as the orders also envisaged that an urgent family assessment report be prepared, which would particularly address the issue of the time the father spent with the children concerned and what conditions should attach to that time.
The person nominated by the parties to prepare the report was Dr M. The parties authorised Dr M to confer with Dr V, about the father’s psychiatric condition, if she deemed it appropriate.

c) Dr M’s report

Dr M is a psychologist in private practice. She has been registered as a psychologist in South Australia since 1980. Her report was released to the parties on or around 20 October 2010.
Dr M interviewed each of the parties concerned; each of the children; and observed the children with their father; on different occasions in late August, September and October of 2010. Dr M recommended that the children should continue to live with their mother but spend regular periods of time with their father. She was not of the view that this time needed to be supervised.
In particular, Dr M wrote as follows:
“The children should spend time with the father. Initially, this should be from end of school on Fridays until after dinner on every second Saturday. This should continue for six weeks, and assuming success with this programme, i.e., happiness of the children, the programme should cover the whole of every second weekend, from pickup at school on Fridays until after dinner on Sundays.”[4]
In addition, Dr M recommended that school holidays should be shared by arrangement with the parents.
[4] See Dr M’s report filed 27 October 2010
The mother, in her interview with Dr M, raised her concerns that the father had problems with “time and sleep,” as well as with directions. She described the father as being aggressive at the end of the parties’ relationship and with not being able to take care of himself when depressed. Overall, she doubted the capacity of the father to care for the children, particularly in an overnight setting.
The father, in his interview, indicated his close ties with the children. He also explained that the change of his medication in 2009 had greatly upset his ability to function and had made him tired and aggravated. It was his position that his supervised time with the children had gone well.

[X] raised some criticisms of his father’s past behaviour, including that his father tended to sleep a lot and became angry with the boys, whom he had slapped on the legs. However, when asked about spending time with his father, he indicated to Dr M as follows: “Seeing dad is pretty good.” As such, [X] indicated a desire to see his father more often.
[Y] reported that he was currently seeing his father on Saturdays when they went to “fun places and bowling”. He did not apparently express any view in respect of spending more time with his father but equally did not express any opposition to it. [Z] indicated to Dr M that he wanted “to see dad on holidays and Christmas and on his birthday”.
All three children were observed by Dr M to greet their father warmly and to hug him. So far as Dr M was concerned, the observed interaction between the father and children passed unexceptionally. In particular, Dr M observed nothing negative in the children’s interaction with the father.
In the discussion segment of the assessment, Dr M reported as follows:
“The children’s interactions with the father and their behaviours in the access were interesting. Overall, the relationships were perceived to be positive. The children treated their father openly and without reserve. There was no indication that additional contact would not be acceptable to them. Indeed, it probably would serve to help them come to a full understanding of father’s devotion and of his sincere intention to be their loving, protective and interesting parent, not simply a person who might be appreciated for his commercial value.”[5]
[5] Ibid

d) The father’s position

The father asserts that he has a good relationship with each of the children concerned, as he was extensively involved in providing care for each of them, from the dates of their respective births. It is his case that he bathed the children; dressed them; put them to bed; prepared meals for them; read to them; and played with them. It is also his case that, as the children grew older, he was involved in their various school and sporting activities.
It is his case that his psychiatric condition is well managed currently and he has always been compliant with medication prescribed to him, other than when he varied his anti-psychotic medication in September of 2009, for what he considers to be valid reasons. As such, he disputes any suggestion that he poses any threat to the children concerned.
The father also relies on two recent affidavits from his mother and sister respectively. They each depose as to their experience of supervising the father’s time with the children since the making of the orders in August of this year. Both report that the children were happy to see their father and spend time with him. Neither Mrs E nor Ms I reports any problems arising from any of the visits concerned.
It is the father’s overall position that he has proceeded sensitively and cautiously, in the light of the mother’s professed concerns, but the time is now right for his time with the children to be expanded and for the requirement of supervision to be removed.
The Elam family own a holiday home at [L]. During the forthcoming end of year school holiday, the father would want to spend a week’s holiday with the children at [L]. Currently, orders restrict Mr Elam spending time with the children more than 25km away from the centre of Adelaide. [L] falls outside such a radius. Accordingly, the father would wish this requirement to be relaxed.
The holiday home is apparently owned by Mr & Mrs E. They would be living at the home during the proposed holiday, as would other members of the family, although all concerned would come and go.
To her credit, the mother indicated that she was comfortable with such an arrangement, provided members of the children’s extended paternal family were present. Essentially, the mother would want there to be some agent, external to the father, who would ensure that his psychiatric health was stable and who could provide a “weather eye” for the children.

e) The mother’s position

The mother’s case is that she is supportive of the children spending time with their father, provided this time poses no risk to the children concerned. She continues to have grave reservations about the father’s functioning, both as a parent and psychiatrically, from her experience of him during the parties’ relationship.
The mother refutes the father’s assertion that he was extensively involved in parenting and caring for [X], [Y] and [Z]. It is her position that she was the children’s primary provider of care, assisted by her mother, Ms L. The mother deposes that the father provided “minimal help” with the children’s reading and homework, only occasionally taking them to kindergarten, day care or school.
The mother concedes that some of the symptoms of the father’s schizophrenia are controlled by medication. However, it is her position that he continues to suffer “debilitating” side effects from this medication, particularly the need to sleep for long hours during the day. She also complains that he is easily irritated.
In summary, the mother deposes that the father’s psychiatric condition causes him to exhibit the following behaviours:
·neglectful hygiene;
·poor judgement, leading to a lack of responsibility for the children;
·paranoia and hallucinations;
·confusion and poor orientation skills, leading him to get easily lost;
·low tolerance to stress;
·a compromised facility to handle money;
·a severe gambling problem;
·negligence with his medication, particularly a propensity to leave it within reach of the children;
·the careless use of pornographic material, depicting naked men.
The mother was concerned that the father had recently obtained accommodation away from his parents’ home. The father confirmed that this was the case. In these circumstances, the mother was particularly concerned about the father’s capacity to adequately monitor and care for the children, in the absence of a member of his family.
In her most recent affidavit, she deposed as follows:
“I want the children to have a positive relationship with the husband, although in a way which ensures their safety. I am particularly concerned about their safety if they spend time with him on an overnight basis given his unusual sleeping patterns and his long term general lack of ability to cope with the demands of the 3 boys.”
… Now that the husband is no longer residing at his parents’ home, the need for the children’s time with him to be supervised or a family member familiar with his condition being present in the same house as the husband and the children or being in the near vicinity when they are away from a house is all the more important.”[6]
[6] See mother’s affidavit filed 2 December 2010 at paragraph 28 and 32
The mother concedes that she does not have a particularly close or trusting relationship with either Mrs E or Ms I. However, it is her position that they and other members of the father’s family understand his psychiatric condition and “appreciate the level of support he needs”. As such, it is the mother’s position that the presence of a member of the father’s family is an essential precondition to the father spending any time whatsoever with the children.
The father asserts that the mother has exaggerated her concerns about his condition and has unjustifiably dismissed his previous involvement with the children. These are difficult issues for me to assess, at this interim stage. However, it is a significant plank of the father’s case that the mother is unable to point to any recent concerns, which she has, about his involvement with the children or point to a specific incident when the children have come to harm.

The nature of an interim hearing

Interim hearings have to take place in a shortened form. There is no time available for the cross-examination of the parties concerned. As such, it may not be possible for the court to make findings of fact about issues in dispute between the parties concerned, particularly if those issues depend on findings of credibility.
The essential difference between an interim and final decision is that interim hearings do not determine long-term arrangements for the care of the child concerned, whereas final hearings do. However although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final stage.

The legal principles applicable

In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served is set out in the Family Law Act [see section 60CC].
What have been called the best interest considerations rest on two main pillars. The first is the importance to children of having a meaningful relationship with both parents. The second is the need to protect children from physical and psychological harm as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1), which sets out the objects of the legislation relating to children and are reiterated as the primary consideration in how a court determines what is in the child's best interests by section 60CC(2).
Other criteria relating to how a court is directed to consider how the best interests of any children concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
There is a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility for him or her. [section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
In the case of Goode & Goode[7], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[7] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.

·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.

The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.

Consideration of the applicable section 60CC factors

a) The primary considerations

I am satisfied that the evidence, even at this interim stage, indicates that [X], [Y] and [Z] know their father well. They each shared a household with him until the start of 2010. This is a significant factor.
In addition, Dr M reports that the children interacted positively with their father, during the interaction, which she observed. Certainly, there is no evidence to indicate that the children are fearful of their father, although [X] does report some negative experience of him.
The legislation directs the court to consider the benefits a child is likely to derive from having a “meaningful” level of relationship with his or her parents. The emphasis in the legislation is on not only the quantity of time a child spends with a parent but also its quality.
Meaning in child/parent relationships is likely to come from parent and child being able to interact in a variety of circumstances and conditions. Ideally, these circumstances should include fun and recreational activities, but also more mundane settings, which will enable parent and child to have a sense that they have a day to day involvement together, which is noted in routine.
The aim being for the child concerned to have a balanced view of his or her parent, resulting from exposure to the parent in a variety of roles, which will in turn lead to a richer relationship with the parent concerned. The intention being that the parent who is the more absent in the child’s life is something more than a holiday or weekend mum or dad.
The rationale of section 60CC(2)(a) and the object from which it flows [section 60B(1)(a)] is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which result from them being exposed to their parents in a variety of settings – both relaxed and structured.
If this ideal is achieved, the child/parent relationship will become a comfortable and intimate one. The child concerned will have a sense of a deeper connection to the parent concerned. Child psychologists have spoken of the benefits to a child of being able to simply “hang out” with a parent, so that the parent and child are comfortable and relaxed together, just being in each other’s presence, without actual activities taking place.
It is also usually the case that meaning is added to parent/child relationships, if an absent parent is able to provide some aspect of basic “nuts and bolts” parenting to the child with whom he or she does not usually share a household, say preparing meals; oversighting bedtime and regular aspects of hygiene; and dealing with issues of day to day discipline, such as completion of homework. This is difficult to do, away from the home of the parent concerned.
In addition, for obvious reasons, meaning will be added to a parent/child relationship, if the child concerned is familiar with where his/her parent usually lives and the day to day routine of that parent. In this context, it is usually important that the parent/child relationship occur in as normal a situation as possible. For this to occur readily, the time allocated for the parent/child relationship concerned must be of a reasonable duration, otherwise there will be the potential for the relationship to be stilted or skewed in some way.
This is Mr Elam’s position. He argues that his relationship with the children is currently artificially constrained, in the sense that he is not able to provide for the children in an overnight setting and he does not have enough time with [X], [Y] and [Z], so that they have a commonplace parenting relationship together, involving elements of every day care.
In his submission, this cannot lead to him having a normal level of relationship with the children, which axiomatically cannot so be described as meaningful.
In my view, there is much weight to Mr Elam’s argument, which has the tacit support of Dr M. Dr M is in favour of the father spending more time with the children and she does not advocate the need for supervision.
The central question posed for the court, in the current proceedings, is whether the concerns raised by the mother should mandate a cautious approach being taken to the question of the father spending time with the children, until concluded findings of fact can be made about the nature of the father’s illness and his previous interactions with the children, particularly whether he poses a risk to them, which it would be unacceptable for the court to take at this stage. In this context, the court must consider section 60CC(2)(b).
This other primary consideration directs the court to protect a child from the consequences of possible physical or psychological harm, which may result from that child being subjected to, or being exposed to, neglect or family violence.
The mother’s case is that the father’s illness renders him liable to neglect the children’s fundamental parenting needs. As such, it would constitute an unacceptable risk, to [X], [Y] and [Z], if the father spends time with them, particularly overnight, in the absence of a family member, who will provide some form of safety net for him and the children.
The court’s duty is to protect a child from the harm resulting from possible exposure to neglect and abuse. If there is an unacceptable risk of the child being harmed, by either neglect or abuse, from coming into contact with a parent, who may expose a child to neglect or abuse, the court should not countenance such a risk.
In performing this assessment of risk, the court’s task is to assess prospective dangers for any child concerned. In performing this assessment of risk, the court must also bear in mind that there may be risks entailed in unduly curtailing a possibly valuable and viable parental relationship for a child, by imposing unduly onerous or restrictive conditions on the time a parent spends with a child.
In this particular case, both Dr V and Dr M were requested to make a professional assessment of the potential risks involved in the children spending time with their father. In particular, Dr V was asked to make an assessment of the potential for the father to be non-compliant with his psychiatric regime. Neither expert considered that Mr Elam’s future interaction with the children was likely to pose a significant risk to the children. In my view, this is a significant factor.
In my view, it is also significant that the mother is unable to point to a specific example, where she asserts that the children have suffered some level of definite harm, as a result of the father’s deficient parenting of them. In reaching this conclusion, I appreciate that it is the mother’s position that, up to this point, the father has never had to provide for the children by himself alone, without assistance from either his mother or sister and, during the parties' relationship, from the children’s maternal grandmother or herself.

However, in my view, the mother’s fears of harm coming to the children, as a result of coming into contact with their father, are somewhat amorphous. In addition, it is not an unknown phenomenon that fathers, following separation, have to step up to the plate and learn new skills in providing for their children in the new circumstances which now prevail.
Dr V’s experience of the father is that he has been responsible in terms of his past compliance with medication prescribed for him and has been responsible in seeking regular psychiatric treatment. Dr V believes that the father is able to drive a motor vehicle. At this stage, the evidence suggests to me that Mr Elam’s schizophrenia is currently properly managed.
A psychiatric illness, of itself, cannot be a bar to a parent spending time with a child or determine the extent of that time. The mother is not professionally qualified to assess the implications of the father’s condition nor can she comment on the father’s current presentation, as she has not spent any significant time, in his presence, since early 2010. Given the circumstances of the parties’ separation, she is likely to continue to hold a jaundiced view of the father, for some time to come.
At this stage, in my view, Dr V is the person most qualified to assess objectively the father’s mental state and its implications for the father’s capacity to parent the children properly. Dr V has no qualms about the father interacting with the children. In addition, he is not troubled about the father’s driving capacity or the possibility that he lacks insight into the possible consequences of him ceasing his psychiatric regime.
I acknowledge that the mother does not altogether trust Mrs E or Ms I. I also acknowledge that their evidence, and so objectivity, is as yet untested. For obvious reasons, they are likely to support the father, whom they each hold dear.
However, of importance in the overall assessment of risk, is the fact that they each report the children having a positive experience with their father and have raised no concerns about his involvement with them. Clearly, both the children’s paternal grandmother and aunt love the children and would want no harm to come to them. They are each very familiar with the father’s psychiatric illness. In these circumstances, I think it unlikely that either would be willing to be complicit, with the father, in exposing the children to any significant risk of coming to harm, whilst in the father’s unsupervised care.
I acknowledge that I cannot definitively rule out the possibility that there will not be some serious lapse in the father’s parenting of [X], [Y] and [Z] because his parental capacity has become impaired, in some way, because of his ongoing psychiatric condition. However, in my assessment, the risk is a low level one, particularly given the ages of the children concerned – eleven and nine.
The children attend primary school. As such, they are articulate and have expressed criticisms of their father to Dr M. Accordingly, they each have the ability to report any problems arising from spending time with their father to their mother. In addition, if the periods of time are kept relatively short, the potential for risk, arising from any impairment in the father’s parenting capacity, is much reduced.
The mother is clearly very anxious about the father spending unsupervised time with the children. Her anxiety, of itself, may possibly impinge on her own capacity to parent [X], [Y] and [Z] to her full potential. It would seem likely that, up to this stage, she has provided significantly more of the children’s care than the father has. As such, it behoves the court to accord respect to the mother’s views.
The father’s illness must be regarded as a major condition. The mother has long term personal experience of it. Given these factors, I must be careful not to underestimate the strength of the mother’s concerns. However, the mother’s concerns must also be balanced against the desirability of [X], [Y] and [Z] having a meaningful level of relationship with their father, which involves an extension of his time with the children, as recommended by Dr M.
In my view, in the court’s task of balancing these competing factors, it would be helpful to all concerned and protective of the children, if some element of external supervision was maintained in the father’s time with the children, but the time was otherwise extended.
What I propose is that either Mrs E or Ms I be part of the process of collecting the children from their mother, on alternate weekends and be present for the first two hours before withdrawing. The intention being that their presence would act as a form of reassurance to the mother, particularly in the sense that they would not countenance the children remaining in their father’s care, if he was significantly unwell.
In my view, it is also likely to be beneficial to the children, if they take part in the family holiday to [L]. I accept that members of the children’s external paternal family will be coming and going, from the holiday home, during this period. However, the main focus will be on the children spending time with their father, in a relaxed holiday setting. In my view, this response is commensurate to the potential risk the father’s psychiatric illness poses to the children concerned.

b) The additional considerations

I accept that the children are generally in favour of spending time with their father and have sufficient maturity to express this view. This follows from Dr M’s report [section 60CC(3)(a)].
As already indicated, I accept that the most significant person in the children’s lives, at present, is their mother. The children also have a close relationship with their maternal grandmother. However, it cannot be said that the children are strangers to their father. They have occupied a household with him for the vast majority of their lives.
In addition, the children have experience of living with their father, whilst he has been suffering from schizophrenia and has been receiving treatment for his condition. On any view, the children’s relationship with their father is significant.
I also accept that the children have close ties with relatives on their father’s side. As previously indicated, I have no reason to think that these relatives would be willing to expose [X], [Y] and [Z] to any appreciable risk of harm [section 60CC(3)(b)].
The mother’s case is that she is willing to ensure that the children have a proper level of relationship with their father, provided that they are safe. It is also her case that the father has failed to discharge his proper parental responsibility, towards the children, in practically every capacity, including financial.
This state of affairs is disputed by the father, who describes himself as a committed parent. As such, he contends that the mother is not committed to him having an appropriate level of relationship with the children but is putting her own emotions before the needs of the children. At this point, I am unable to make findings about this major area of contention [section 60CC(3)(c)].
One of the major issues in the case is the respective parental capacity of the father and the mother, particularly in terms of their insight into the emotional needs of the children. It is the mother’s case that the father’s psychiatric illness has left him lacking such insight and with an impaired parenting capacity [section 60CC(3)(f) & (i)].
As previously indicated, I do not easily dismiss the mother’s concerns in this regard. However, again, in my view, the court must consider the children having the potential to have as normal a relationship with their father, as is possible in the difficult circumstances, which currently prevail.
In my view, this consideration necessitates the children spending some periods of overnight time with their father. However, in difference to the mother’s concerns and given the untested nature of the parties competing views about this issue, I propose restricting the father’s overnight time, with the children, to one night only, other than the period of the proposed [L] holiday.
In my view, the orders which I propose will not constitute a major change of circumstances for the children [section 60CC(3)(d)]. The children will be spending modest amounts of overnight time with their father, on alternate weekends.

Conclusions

Neither party made any submissions about the application of the presumption of equal shared parental responsibility, preferring, for obvious reasons, to concentrate on the practical issues arising in this case – overnight time and the need for supervision. As such, it was not a case to do with the allocation of parental responsibility per se.
The parties mistrust one another at present, although I accept both are focussed on what they perceive to be the children’s best interest. Currently there is a divergence between them in the subject of that focus. The parties do not communicate well, if at all. In these circumstances, I have reached the conclusion that it would not be appropriate to apply the presumption, at this interim stage.
Accordingly, it is not necessary to consider the issue of equal time or substantial and significant time. Rather, whilst focussing on the applicable section 60CC factors, I must endeavour to achieve the outcome, which I believe will best serve the interests of [X], [Y] and [Z], bearing in mind the provisional nature of the evidence before me.
I have been informed by the parties respective counsel that it is anticipated the hearing of all final issues will take between three and four days. I will allocate a hearing time in 8, 9 and 10 June 2011, which is the earliest date available to me.
Given the delay in final hearing, I have come to the conclusion that a proper consideration of the children’s best interests dictate that there should be a modest extension in the time, which they spend with their father.
In reaching this conclusion, I am strongly influenced by the opinion of Dr M and the fact that Dr V, the father’s treating psychiatrist categorises Mr Elam as being compliant with his medication and not likely to pose a threat to the children concerned.
In these circumstances, I consider that it is appropriate for the children to spend some periods of overnight time with their father. As indicated, I will include some level of oversight in this regime, to provide both reassurance to the mother and some safeguard to [X], [Y] and [Z].
I will also make orders which deal with special occasions, in the period leading up to the final hearing of the matter. I am satisfied that the orders, which I propose, will not create an unacceptable risk of the children coming to some form of either psychological or physical harm, whilst in the care of the father.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 10 December 2010