GANTRY & CHISWICK
[2020] FCCA 362
•21 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GANTRY & CHISWICK | [2020] FCCA 362 |
| Catchwords: FAMILY LAW – Parenting – application for change of residence – embroilment of the children in the parental dispute – Father’s inappropriate involvement of the children in adult issues – questions as to the Mother’s mental health – Mother’s refusal to obtain a psychiatric assessment – non-compliance with orders – ruptured relationship between eldest children and the Mother – best interests of the children. |
| Legislation: Family Law Act 1975 (Cth), Pt.VII, ss.60B, 60CA, 60CC(2), 61DA, 65D, 65DA, 121 |
| Cases cited: Beckham & Desprez [2015] FamCAFC 247 Grella & Jamieson [2017] FamCAFC 21 |
| Applicant: | MR GANTRY |
| Respondent: | MS CHISWICK |
| File Number: | MLC 13489 of 2018 |
| Judgment of: | Judge Carter |
| Hearing dates: | 7, 8, 9 & 10 October 2019, 26 November 2019 and 13 December 2019 |
| Date of Last Submission: | 13 December 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 21 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Trim |
| Solicitors for the Applicant: | Taylor Splatt and Partners |
| Counsel for the Respondent on 7, 8, 9 & 10 October 2019: | Ms Fisken |
| Solicitors for the Respondent: | Farrar Gesini Dunn |
| Solicitor Advocate for the Respondent on 26 November 2019: | Mr Buckley |
| The Respondent appeared in person on 13 December 2019. |
ORDERS
All previous parenting orders in relation to the children X born 2005, Y born 2006 and Z born 2009 (“collectively, “the children”) be and are hereby discharged.
The parties have equal shared parental responsibility for the children.
The children live with the Father.
The children spend time with the Mother as follows:-
(a)each alternate weekend from the conclusion of school (or 3.30pm) Thursday until the commencement of school (or 9.00am) on the following Monday, (or Tuesday if Monday is a non-school day);
(b)from the conclusion of school (or 3.30pm) each Thursday until the commencement of school (or 9.00am) on Friday; and
(c)at such further or other times as may be agreed between the parties from time to time.
Changeover occur as follows:-
(a)at school on the days that the children are attending school;
(b)on a non-school day, the Father to deliver the children to the Mother’s residence at the commencement of the Mother’s time and the Mother to deliver the children to the Father’s residence at the conclusion of her time; and
(c)otherwise as may be agreed between the parties from time to time.
Each parent shall allow the children to communicate with the other parent when they are in their respective care at reasonable times and each will facilitate same.
Notwithstanding any other order, the children spend time with each of the parents as follows:-
(a)for half of each of the school holidays as agreed, and failing agreement, as follows:-
(i)for the school term holidays with the Father for the first half and the Mother for the second half in even numbered years;
(ii)for the school term holidays with the Mother for the first half and the Father for the second half in odd numbered years; and
(iii)for the long summer school holidays:-
A.with the Father for the first half and the Mother for the second half in even numbered years; and
B.with the Mother for the first half and the Father for the second half in odd numbered years;
with changeovers to occur at 6pm on the middle day of each of the school term and long summer holidays;
(b)at Christmas:-
(i)with the Mother from 4.00pm on Christmas Eve until 4.00pm on Christmas Day and with the Father from 4.00pm on Christmas Day until 4.00pm on Boxing Day in 2020 and each even numbered year thereafter; and
(ii)with the Father from 4.00pm on Christmas Eve until 4.00pm on Christmas Day and with the Mother from 4.00pm on Christmas Day until 4.00pm on Boxing Day in 2021 and each odd numbered year thereafter;
(c)unless otherwise agreed in writing, the children spend time with each of the parties for the children’s and the parties’ birthdays as follows:-
(i)with the non-resident parent from 3.30pm until 6.00pm if a school day, AND THE COURT NOTES THAT the children will have dinner with the parent in whose care they are otherwise residing; and
(ii)with the non-resident parent from 10.00am until 2.00pm if a non-school day;
(d)in the event that the children are with the Father on Mother’s Day, the children spend time with the Mother from 10.00am to 5.00pm on Mother’s Day;
(e)in the event that the children are with the Mother on Father’s Day, the children spend time with the Father from 10.00am to 5.00pm on Father’s Day; and
(f)at such further or other times as may be agreed between the parties from time to time.
The Father forthwith enrol in a Parenting Orders Program with B Service or a similar provider for no less than six weeks, and provide a certificate of completion of same to the Mother upon completion.
Each of the parties and their servants and/or agents be and are hereby restrained by injunction from:-
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other party; and
(b)discussing these proceedings or the contents therein;
to or in the presence or hearing of the children or any of them and from permitting any other person so to do.
Each of the parties:-
(a)advise and keep the other advised at all times of the current residential address and telephone number of the children and advise the other of any change thereto within 48 hours of such change;
(b)forthwith advise the other in the event that the children or any of them suffers any serious illness or injury;
(c)authorise any medical practitioner upon which the children or any of them may attend from time to time, to communicate with the other in respect to the children’s medical conditions and/or requirements;
(d)authorise any schools at which the children or any of them may attend, from time to time, to:-
(i)provide the other, at the expense of the other, copies of all school reports, school notices and school photograph order forms in relation to the children; and
(ii)communicate with the other, either by telephone, in writing or by personal attendance, in respect to the children’s progress at their respective schools; and
(iii)be at liberty to attend all school functions and extra-curricular activities to which parents are normally invited;
subject to any policy in relation thereto.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Gantry & Chiswick is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Melbourne |
MLC 13489 of 2018
| MR GANTRY |
Applicant
And
| MS CHISWICK |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to a dispute as to the care arrangements for the parties’ three children, X born 2005 who is 14 years of age (“X”), Y born 2006 who is 13 years of age (“Y”), and Z born 2009 who is 10 years of age (“Z”). The children currently live with the Mother and spend time with the Father.
It is the Father’s case that the Mother has serious mental health issues that impact on both her parenting and her relationships with the children and need to be addressed. The Father’s position is that X be allowed to determine his own living arrangements, and that Y and Z live primarily with him. The Father says that pending the Mother being psychiatrically assessed and commencing treatment, the children should potentially spend three nights per fortnight, or even supervised time with the Mother. Once the psychiatric assessment and treatment occurs and provided the Mother is functioning well enough, it is the Father’s view that time could then occur on a week-about basis. The Father also relies on the views of the children in that they would prefer more time in the Father’s household than they currently have.
The Mother opposes a change of residence. It is her position that the children should remain living with her and should spend five nights per fortnight with the Father, in addition to shared school holiday periods and special occasions. She denied that she has any mental health issues that impact on her parenting. Troublingly, however, the Mother has refused to comply with my order made on 7 November 2019 for psychiatric assessments of both parties.
Background
The Father is 54 years of age. He works at the C Organisation as a professional. The Mother is almost 51 years of age. She works as a professional at D Company on a part-time basis.
The parties commenced living together in or around mid-2002. Following X’s birth, the Mother remained at home, engaged with parenting the children, until she returned to part-time work in 2013. At that time, Z was three and a half years old. The Father generally worked throughout the relationship, save for periods following redundancies. He said he was very engaged with caring for the children outside of work hours and during the times he was not engaged in paid employment.
The parties purchased a home in Suburb E in 2005. They remained living at that home until June 2017. At that time, the parties moved to Suburb F so that X could commence at Suburb F School the following year.
In or around September 2017, the Mother obtained a psychiatric referral from her General Practitioner (“GP”) to attend upon Dr G, psychiatrist (“Dr G”). She said this was for “counselling”. The Mother attended a number of sessions with Dr G between late 2017 and mid-2018. She said that she ceased attending upon Dr G as she was no longer gaining the benefits from the appointments that she had previously.
The parties separated under the one roof in early 2018. The Father left the former matrimonial home on 11 February 2018, following an altercation which resulted in the Mother obtaining an Intervention Order.
It is the Mother’s case that the Father was violent towards her on previous occasions during the relationship. She said that on one occasion, when the children were small, the Father pushed her to the ground during an argument. She said on another occasion, he pinned her down on the bed, and had his hands around her neck. She also said that whilst separated under the one roof, he grabbed her by the arm and threw her into a wall during an argument. Those allegations are denied by the Father.
Events at separation
On 11 February 2018, there was a physical scuffle between the parties in their bedroom, arising as a result of the Father finding a letter in the Mother’s handbag that he believed evidenced she was having an affair. At trial, he said he saw the note “protruding from the top” of her handbag, and it “piqued [his] curiosity”. He said he “extracted” the note and read it. He said he then became “sick to [his] stomach” as he realised the Mother was having an affair. He said he finished making the children’s breakfast and then went into the master bedroom to confront the Mother.
The Mother requested that the Father give her the note, however he refused and she attempted to grab it out of his hand. The Father was unable to explain why he did not simply return the note to the Mother as she had requested. The Mother then took his phone from beside the bed, and said she would give him the phone in exchange for the note. The Mother said the Father then hit her twice, with an open palm, to each side of her face.
She said the Father struck her with sufficient force to cause bruising to her arms and swelling on her cheeks. As set out below, some of these injuries appear to be corroborated by Dr G, upon whom the Mother was attending at the time.
The Father denied that he struck the Mother’s face, although in his oral evidence, he acknowledged that he had “put a hand on top of [the Mother’s] head and… gave her a reasonable push to extricate [himself]” in circumstances where he said she had him cornered in the bedroom. He said after that, he went through the bathroom and back into the bedroom. It is his evidence that he then grappled with the Mother, on the bed, in order to retrieve his phone. He said she was on top of him and he “… made a decision to move [his] outstretched hand and put that on top of her head and push her off again”. This caused her to lose balance and she rolled over.
The Father said that during their “tug of war”, his mobile phone was shattered. He said the Mother had pinned him to the bed at one stage. The Father deposed that he:-
…sustained cuts and abrasions and [his] hand was covered in blood. [He] had puncture wounds from her nails, blood splattered on [his] pocket and [he] had a shattered phone.
There was no extrinsic evidence of any such injuries to the Father or damage to the telephone before me.
The children were at home at the time. The Mother deposed that X observed at least part of the physical tussle.
The parties then went downstairs. The Mother deposed that she was “quite fearful” and told the Father that she was going to call the police. She says the Father responded and told her she would “regret it and he would tell the children what the note was all about.”
The Mother said that when she was on the phone to the police, the Father told the children she had been having an affair, and that was why they were separating. The Mother said that X had responded “if she did that then she deserves to be hit” and then said to the Mother “you deserve to be hit mum”. She said the Father did not reprimand X for these comments.
The Father said he does not recall these comments being made. He said the Mother described him as her “ex-partner” whilst on the phone to the police which upset the children. He said he then confirmed to the children that their parents were separating, and told them that it seemed as though the Mother had been having an affair. He acknowledged it was wholly inappropriate to have made such a comment to the children. The Mother denied that the letter was evidence of an affair.
On that day, the police assisted the Mother in obtaining an Intervention Order.
Events following separation
There was no face-to-face time between the Father and the children from 11 February 2018 to 11 April 2018. The Mother proposed some supervised time, however the Father declined that proposal as he said there was no basis for the time to be supervised.
Time resumed between the children and the Father in or around mid-2018, and was gradually increased to overnight visits.
In July 2018, the Mother attended a parent education session at Suburb F School where she says she was accused by a teacher of being a sex addict. The Mother’s evidence in relation to this incident is set out in detail later in these reasons.
On 22 November 2018, the Father issued these proceedings. At that time, the Father did not assert that the Mother suffered from any mental health issues that impacted on her parenting. He did not identify any risk issues arising out of concerns about mental illness in the Notice of Risk that he filed contemporaneously with his Initiating Application.
The matter first came before the Court on 19 March 2019. On that day, orders were made by consent for the children to live with the Mother and spend time with the Father for four nights per fortnight, to increase to five nights per fortnight in the next school term. Orders were also made for time during the school holidays and on special occasions.
On 9 August 2019, the Father filed an Application in a Case on the basis that the parties had not been able to reach an agreement as to who should be appointed to prepare a Family Report. He also sought an order that the Mother be psychiatrically assessed, the children live with him and spend supervised time with the Mother pending that psychiatric assessment. The Father also filed a subpoena directed to Dr G on that day.
On 12 August 2019, the Mother filed an objection to the subpoena issued to Dr G.
The Father’s Application in a Case came before me on 19 August 2019. On that day, I also heard and dismissed the Mother’s objection to subpoena. As set out in my reasons given on that day, the documents from Dr G were clearly relevant, as the Father had raised significant concern in his material filed in support of his Application in a Case that the Mother had mental health issues that were impacting on her parenting of the children.
The Father did not press the need for a psychiatric assessment of the Mother on that day.
Dr H, Family Consultant (“Dr H”) met with the parties and the children on 9 September 2019 for the preparation of the Family Report.
The order for the psychiatric assessment
The trial commenced on 7 October 2019 and proceeded by way of a Final Hearing over the course of five days. Both parties gave evidence and were cross-examined, as was the Mother’s sister, Ms J (“Ms J”), who was a witness for the Father’s case. I also had the benefit of hearing from Dr H.
At the conclusion of the trial, I formed the view that I required psychiatric assessments of both of the parties in order to properly determine what arrangements were in the children’s best interests. On 7 November 2019, I made an order for the parties to be psychiatrically assessed and delivered reasons in relation to same. I otherwise adjourned the matter to 27 February 2020 for the resumption of the trial following the completion of the psychiatric assessments and the preparation of any addendum report by Dr H.
Those reasons in particular outlined the concerns I had regarding the Mother’s mental health.
The parties’ lawyers had previously agreed that if a psychiatric assessment was to be ordered, such assessment should be conducted by Dr K, psychiatrist (“Dr K”). Appointments were available with Dr K on 15 and 20 November 2019. However, neither party attended those appointments. The Mother declined to attend, and in light of her refusal, the Father similarly declined.
The matter was then mentioned before on 26 November 2019. The Mother did not attend at that hearing. She was represented by her then-solicitor. He advised that the Mother was considering appealing the order for the preparation of the psychiatric assessments. I reserved the question of costs and otherwise gave the parties liberty to apply as the time for an appeal to be lodged had not yet lapsed.
The matter was again mentioned on 13 December 2019. The Mother appeared in person, having ceased her instruction to her solicitors. On that date, no appeal had been lodged by the Mother and she continued to refuse to comply with the order for the psychiatric assessments.
The Mother said she will not be psychiatrically assessed as my order for same “is the result of an illegitimate process regarding the evidence at trial”. She said that the Father bore the onus of proving his case – being that the Mother suffers from mental health issues – and that the Father had not proven that issue and the Court could not “go searching for more”. She confirmed that she understood I would be asked to draw adverse inferences from her refusal to comply, namely that her refusal to be psychiatrically assessed flows from her concern that it would not assist her case. Her position remained firm notwithstanding being informed that her refusal would likely have consequences in relation to the orders I would be making for the children’s care arrangements.
I understand that the reference by the Mother of an “illegitimate process regarding the evidence at trial” was a reference to the subpoenaed material from Dr G.
As set out, the Mother had attended upon Dr G for a period of eight months between 2017 and 2018. The Mother objected to the subpoena directed to Dr G which I dismissed. The Mother did not appeal that order.
The notes produced under subpoena to Dr G and the Mother’s responses to the questions asked arising out of those notes were not the only basis upon which I formed a view that a psychiatric assessment was necessary in this case. There were other aspects of the Mother’s presentation and evidence that considerably raised my concern that the Mother has mental health issues that may impact on her parenting capacity. I detailed those issues in my previous judgment, and I will turn to those issues again in these reasons.
I note that the Father has also not been psychiatrically assessed. Whilst the order was for both parties to be assessed, the reality is that my primary concerns quite clearly centred on the Mother’s functioning. It was also my view that mutual assessments would provide more holistic information than a single assessment. There are also some issues regarding the Father’s insight, which I had anticipated could be explored in a psychiatric assessment. However, in my view, little was to be gained from having a psychiatric assessment of the Father alone in this matter.
In light of the Mother’s clear and repeated refusal to comply with the order for psychiatric assessment, on 13 December 2019, I discharged the order for the parties to be psychiatrically assessed. Accordingly, I must decide what is in the children’s best interests without what I regard as a key piece of evidence.
The Father’s role in the children’s relationships with the Mother
The Father gave evidence and was cross-examined at length.
The Father proposed that X make his own decisions regarding his care arrangements. In relation to Y and Z, the Father sought orders that the children move primarily into his care until the Mother is psychiatrically assessed and treated. He said that provided the Mother engages with the treatment and improves, the goal would be to progress to an equal time arrangement.
The Father outlined that in his view, the Mother’s relationship with X has been “combustible” for the last three or four years. He said the Mother’s relationship with Y was also deteriorating. He said both are very reluctant to return to their Mother’s care after each visit with the Father, but said he is able to “talk them around”.
The Father said he listens to the children’s anecdotal statements, takes their word very seriously and that he and the children “make decisions very collaboratively”.
I gained the impression that the older children are quite aligned with the Father. It is also apparent that there is some significant over-involvement by the Father of the children in adult issues, and in them reporting back to the Father about events in the Mother’s home.
The Father said repeatedly that he wants the children to have a good relationship with the Mother, that he has the “utmost respect” for her and wants her to be well. He denied he has played any significant role in the issues surrounding the strained relationship between the Mother and the older two children. He denied having denigrated the Mother to the children, although he acknowledged that there were times he perhaps used inappropriate wording. That position demonstrates a lack of insight as it is plain that the Father has at times acted in a manner that is denigrating and undermining of the Mother. This is evidenced in particular in a number of text message exchanges between himself, X and Y.
Text messages regarding Y’s school interview in October 2018
The Mother deposed that when the children were born, the parties each put the children on waiting lists for a number of private schools. In or around September 2017, she said that the parties discussed Y applying for a scholarship at L School (“L School”). She said that the Father took Y to additional lessons in the lead up to the interview and the Mother took him to that interview in November 2017.
Subsequently, Y was offered an interview at L School, to take place in October 2018. Although the Father agreed he knew about the earlier audition, he said he did not know about a possible scholarship until Y told him via text. The scholarship interview was adjourned on four occasions before finally taking place with both parents present on 22 November 2018. It was then terminated part way through as Y became upset and distressed.
On 16 October 2018, Y sent a text to the Father, stating that the Mother had informed him that L School had offered him an interview. Y was dismissive of the Mother telling him he had a high chance of being accepted, referring to the school “considering giving [him] a stupid ‘Special Acceptance’ thing.” It appears to me that by that time, Y had formed a view that he did not want to attend L School. It is also apparent that Y knew that the Father supported that position.
At 8.00pm that night, the Father sent this message to X:-
Hi [X]
Could you delete this text and [Y’s] last test – just in case Mum goes through messages – tell [Y] I’m talking to my lawyer about this matter – he should go to interview – but don’t worry, he won’t be going to the school
[sic]
X wrote back “Sure I’ll delete the text and tell [Y] right now”.
The following day, the Father sent:-
Hi [X]
Pass this on to [Y].
Hi [Y]
Everything will be ok.
I have spoken to my lawyer about [L School] interview. I have said that I learnt about the interview though my own investigations with schools. Delete this text when you have read it.
Love
Dad
Later that evening, Y wrote:-
Hey dad,
Do you have any advise on what I should say at the interview? I was think something like “As a [performer] I feel like that’s something I definitely don’t wanna persue. I know I might be good at it, but it’s something that I’m not enjoying at the moment.”
[sic]
The Father responded and told Y that was “perfect”, and asked him to call him that evening if he would like to.
In his oral evidence, the Father confirmed that he had spoken with Y at length about the pros and cons of going to L School. He said he was “reassuring [his] son who seemed quite panicked about attending an interview”. He said Y was adamant that he did not want to attend L School, and he was just supporting his son. The Father denied that there was anything inappropriate in him requesting that the children delete the text messages. He believed that it was necessary so that the Mother could not know about their discussion. He felt this was justified and he had no other options. He said he wanted Y to “know [he’s] got his back”.
I note that in his affidavit sworn on 22 November 2018, the Father does not refer to any of these texts or discussions with the children. He simply said there was a disagreement when the Mother attempted to enrol Y “without informing” him. He said he alerted his lawyers and that the parties were “working together to decide [Y’s] schooling for 2019 and beyond.” The Father stated that he saw “no reason why [he] can’t communicate effectively with the mother in relation to the children’s needs.” This is an inaccurate, misleading and incomplete description of events.
Text messages in November 2018
There was a series of texts dated 4 November 2018, apparently after a dispute between Y and the Mother. The Father sent a text to X’s phone asking if Y was alright and if he could call him. It appears there was some attempt by the boys for that telephone conversation between Y and the Father to be conducted without the Mother’s knowledge. Y wrote – using X’s phone:-
Mum is really suspicious and she just bursted through the door as a was just calling you.
She was shouting at me explaining what I should say when I call you
Like “Mum wasn’t shouting. I over reacted” and stuff like that
Should I still call you?
[sic]
The Father responded:-
Only call if you feel comfortable mate. Don’t be scared of her – you’re allowed to talk to your Dad – she is being extremely controlling. I just wanted to check that you are ok. Everything will be alright
Love you
Y wrote back:-
Sorry, but I really that she will come through the door if she hears me. I will try to call you tonight and I will delete the previous texts.
Love you, [Y]
[sic]
The Father responded with “no worries mate”.
Texts in December 2018
The Mother had the children in her care during part of the school holidays in December 2018.
In a text dated 17 December 2018, the Father wrote to X:-
Hi [X]
[Ms Chiswick] won’t let me speak to [Y] and [Z] now – says they’re on holiday and that they can’t speak. She wanted me to call at 8pm tonight but I told her I’m not available then. Can you do me a favour and let [Y] and [Z] know that I wanted to speak to them but wasn’t allowed by [Ms Chiswick]…
X said he would let them know. The Father then wrote “Thanks mate – please do – I don’t want them to think I don’t care about them – I’m trying but [Ms Chiswick] is just being mean – it’s so unfair”.
X responded “They know you love them dad don’t worry I told them, and they understand. it's frustrating how [Ms Chiswick] is treating you this way [sic]”.
Text messages in January 2019
In a text message exchange on 21 January 2019, X sent the Father a lengthy text message detailing an argument he had had with the Mother after overhearing her telephone discussion with a real estate agent over loudspeaker in the car. The Mother acknowledged that in that discussion, she did complain to the agent that the Father had taken the former matrimonial home off the market without her agreement or consent. It is inappropriate that the Mother had that conversation in front of X. I do not accept her explanation that she had no other option as she and the real estate agent had been trying for some time to speak with each other. By having the conversation in the presence of the children, she was exposing them to the conflict between the Father and herself.
The Father responded:-
Thanks mate – I really appreciate you keeping me informed but delete your last 2 texts and delete this text…
Love you
Text messages in March 2019
In a text message exchanged on 5 March 2019, and after missing a call from X, the Father texted “is everything ok”. X responded “It’s ok I just wanted to call you before mum wanted to call you because she was being ridiculous”.
The Father then texted “No worries mate – hang in there – play it cool – will speak to you when school finishes”.
In his oral evidence, the Father said this exchange reflects the “broken dynamic” between the Mother and X, and X’s lack of trust and confidence in the Mother. He said that X reporting to him after arguing with the Mother was not undermining of their relationship, but was just X “reaching out” to the Father. The Father did not admonish X for saying that the Mother was “being ridiculous” nor enquire the reasoning behind it in his response, implying that the Father accepted X’s description as accurate.
The family meeting in March 2019
At around this time, the parties had a meeting to discuss X’s oppositional behaviour regarding the boundaries the Mother was trying to impose on his gaming. The Mother says that X’s behaviour included him threatening to tell his class that she was a stripper and wore a “g-string”, and that he threatened he would start filming her whenever they had a disagreement.
At the family meeting on 6 March 2019, when X said he would film all conversations with the Mother, the Father responded “what’s wrong with that? What’s wrong with [X] filming you on his phone?” In his oral evidence, the Father said he trusted X “100%” and “for obvious reasons I don’t have trust in [Ms Chiswick]”. He said if she had nothing to hide, then filming would not be an issue, and videoing their interactions would provide evidence of “the truth”.
Text messages in April 2019
The Father annexed a lengthy text message exchange between himself and X in April 2018 to his affidavit of 4 October 2019. X complained that he had had a fight with the Mother about him having interrupted her. In the text messages, X said that during the argument he grabbed the Mother’s phone and said she then firmly grabbed his shoulder and had “half of her arm around [his] neck”. X also complained that the Mother was not giving him pocket money. He wrote “I just thought I would keep you updated”.
The Father’s text message in response reads (in part):-
This is concerning [X] – she shouldn’t be touching you in such a way – keep your distance from her for a while – have some alone time in your room until she calms down. Appreciate you letting me know.
At trial, the entire response from the Father was tendered by Counsel for the Mother. The second half of his response was:-
If she touches you again, let me know – I’ll come straight over and you can stay with me
Love Dad
It is notable that the Father did not include that part of his response to X. It is also notable that, at trial, he described that he was “trying to help [the Mother] navigate through a difficult situation with [X]” over the course of March/April 2018. The Father said he saw himself as “assisting” that relationship. It is difficult to see how his comments to X fit with that description, particularly given that he said that X could “stay” with him.
At trial, the Father said the Mother becoming physical with the children was a “red flag” for him. He said he was worried “where this may go”. He also said that in retrospect, he should have had a “deeper dialogue” with X, and should have spoken to him and explained that his Mother has “got your back”.
M Group workshop – July 2019
The Mother enrolled Y in an M Group workshop to take place in mid-2019. She said he had previously attended a workshop which he thoroughly enjoyed, and was very keen to attend a second workshop. However, just two days prior to the event, Y changed his mind. By then, the Mother had paid for the workshop.
In her oral evidence, the Mother said that Y had wanted to go, she had paid for the event, the organisers were expecting his attendance, it was too late to withdraw only two days prior and she expected him to honour his commitment to attend. She told him that if he did not go, he would not be attending a sleepover party the following week as a consequence. Y chose not to attend the class.
On 10 July 2019, presumably the date of the sleepover party, the Father texted X asking whether the children “[had] to go to Grandmas”. X responded, stating that the Mother had “forced” him to go. The Father then inquired whether Y also attended at their grandmother’s home. X responded “Grandmas, because mum being the nice person she is didn’t let [Y] go to the party due to him not going to the acting class”.
The Father did not reprimand X for making a sarcastic comment about the Mother.
The Father described this as the Mother having “threatened” Y, and then “[making] good on her threat” by not allowing Y to attend the sleepover party. He deposed:-
This sort of bargaining concerns me and I believe the Mother at times struggles to adequately understand the needs of and empathise with [X] and [Y], in particular.
In his oral evidence he said he “was alarmed that [Ms Chiswick] was making threats to him”. He was congratulatory of Y standing up to the Mother and refusing to attend the workshop. He could not see this as having been an example of the Mother appropriately parenting Y by imposing boundaries and consequences.
X’s time with the Father on 25 and 26 August 2019
The Father and X had arranged to meet up on 25 and 26 August 2019 without the Mother’s knowledge. The Father’s evidence was that X had a mathematics task the Father could assist him with. The Father said that as it was the Mother’s weekend, she would not have agreed to X attending upon the Father and X “wouldn’t get support from the Mother”.
The Mother agreed that she would not have allowed X to attend the Father’s home for assistance with his homework. She said the matter could have been attended to via a telephone call between the Father and X. It seems to me that assistance with homework is far more easily and properly provided when the parent and child are in the same physical place. There really seems to be little reason why the Mother would not have agreed to X attending in person at his Father’s home, other than it being “her” time. It demonstrates limited insight on her behalf and reflects poorly on her.
However, the Father’s encouragement of subterfuge and secret meetings is also an inappropriate response. The actions of each of the parents are perplexing and damaging to X’s relationships with them.
September/October 2019 holidays
In the September/October 2019 school term holidays, the children were due to return to the Mother on the middle Saturday, being 28 September 2019. Only Y and Z came home. The Father informed the Mother that X was refusing to return to her home. The Father deposed that X complained about the Mother “why should I keep giving her a chance when she treats me like shit all the time”. There was no evidence the Father reprimanded X for speaking like this about the Mother.
The Mother sought to collect X on the morning of Sunday 29 September 2019. The Father deposed that he “cautioned her that [X] may not appreciate this somewhat forceful approach, given his apparent anxiety”. Despite knowing that the Mother wanted X home that morning, the Father then took him out, so they were not at home when the Mother attended to collect him. That was high-handed behaviour by the Father, undermining of the Mother and overly empowering of X.
The Father said he was “ultimately able to cajole [X] into returning to the Mother”. X returned that Sunday evening at 8.00pm.
Impact of the communications
These communications and incidents demonstrate the Father’s encouragement of the boys’ negative reporting on the Mother to him and the degree to which he has inappropriately involved the children in the adults’ conflict. The children would be highly likely to understand that the Father welcomes such criticism and reporting. They are also highly likely to perceive that the Father agrees with them that the Mother can be mean, unfair, controlling, ridiculous, unable to make sound decisions around parenting, is unreliable and potentially dangerous. It is also clear the Father has encouraged subterfuge and collusion, secret discussions and arrangements to the exclusion of the Mother. He has also denigrated the Mother to the boys, and engaged them in the parenting dispute.
In his oral evidence, whilst the Father agreed he should not have used the word “unreasonable” and he regretted using the word “mean”, he did not see any issue with what he described as “letting [the children] know that what they are experiencing is being controlled”, and that “they’ve got their rights”. He maintained that he has provided the children with an accurate description of the Mother. He said his intention was not to demean the Mother. Rather, he was intending to make the children feel better and “letting them know that her behaviour is not acceptable”. He said he was “trying to help them navigate through the difficult situation” and “through the awkward personality that is [Ms Chiswick]”. He said he sees himself as giving the children the “courage” to communicate with their Mother about “things that don’t fit her needs and expectations”. In his oral evidence, the Father said “we”, meaning he and the children, were “having to operate in a covert way” because of the Mother’s inability to listen to the Father and the children.
When cross-examined about why he did not chastise X for being rude and denigrating of the Mother in some of the text messages, the Father said he does tell X that the Mother may have a point, and that he must listen to and respect the Mother. Comments of those kinds by the Father are not contained in any of the text messages that were tendered before me. The Father said that he reserves those sort of comments for “face-to-face dialogue”. I do not accept the Father’s evidence in that regard. It appears that he does not agree with the Mother’s parenting and supports the children entirely when there is conflict with the Mother. In these circumstances, any such conversations, had they occurred, would have a hollow ring.
It is concerning and troubling that the Father had no insight into how damaging these behaviours are to the relationship between the Mother and children.
The Mother’s mental health
When these proceedings first commenced, the Father did not raise any concerns in relation to the Mother’s mental health, nor seek a change of residence. He has not notified the Department of Health and Human Services (“DHHS”) asserting that the children are at risk with the Mother, nor contacted any mental health crisis services to assist. Essentially it was put that based on his failure to take strong and decisive action, the Father’s position at trial regarding the Mother’s mental health could not be a genuine concern. Dr H also had some concern that the Father was raising mental health issues to “further his own agenda”.
Whether the Father did or did not act sufficiently protectively, or did or did not pursue his application for residence earlier does not assist me at this time. For the reasons I set out in my previous judgment and to which I now turn, it is abundantly clear that I have significant concerns regarding the Mother’s mental health. I also have significant concerns that the Mother’s functioning impacts on the children’s best interests, irrespective of what action has or has not been taken by the Father. In circumstances where the Mother has wilfully disregarded an order made for her to be psychiatrically assessed, those concerns are heightened.
The Father’s evidence regarding the Mother’s mental health
The Father deposed in his affidavit sworn on 7 August 2019 that since early 2017, he has become increasingly concerned that the Mother suffers from delusions. Those reasons include that the Mother:-
a)believed she was being investigated by the police regarding a video she had made of herself, Z and a friend, singing and dancing in their underwear;
b)believed her car had been bugged by the police;
c)believed there was a listening device installed inside a smoke detector at the home;
d)told him she was accused by the facilitator of a workshop at the boys’ school of being a drug addict;
e)uses a pseudonym when ordering coffee, or speaking with service providers on the telephone; and
f)believed that the WiFi at the home was bugged.
The Father also deposed that the children have made statements and complaints to him that have caused him concern regarding the Mother’s mental health functioning and capacity to adequately parent. He described there as having been a “proliferation” of incidents of conflict and delusional behaviours that resulted in him making his Application in a Case in August 2019. The children’s complaints and incidents he outlined in his evidence included that:-
a)the Mother’s home is a “complete mess”, with rotten food in the fridge and fruit bowls and food scraps “littered” on the benches and floors;
b)there is little to no food in the pantry;
c)the Mother regularly buys clothes and does not throw anything out;
d)Z reported to him in tears that sometimes the Mother talks to herself, which made Z feel lonely;
e)the Mother said someone had come in the house and stolen her keys when she had misplaced them herself;
f)the Mother insists on the children being quiet in the street as people could be listening in on their conversations;
g)the Mother is overly protective of the WiFi password, making the children look away when she enters it into any device; and
h)the Mother approached a man in the street, who was on his telephone about 20 metres from their front door, asking him what he was doing.
The Father said that in the lead up to the Final Hearing, the children have continued to complain about there being issues of rotting food and/or no food at the Mother’s home. This is in addition to continued complaints about the Mother’s overly sensitive attitude towards cyber-security and the WiFi password.
The Mother denied the majority of the allegations. In relation to some of the complaints, she gives a different version of events or explanation of the situation.
She denied that she believes there were bugs or listening devices in her house or car, that she was being investigated by the police, or that her WiFi was bugged.
The Mother agreed that X, in particular, is very critical of her as a parent, complaining that she does not clean properly and that she cooks “disgusting” food. The Mother said the issue regarding food has become fraught in her household. She said X is very particular about what he wants to eat, preferring processed and junk food. She says she endeavours to cater for him to an extent, but also needs to ensure that he is eating a properly balanced diet. She said she has tried to include him in food choices and involve him in the shopping. She said despite this, he commonly refuses to eat the dinner she cooks. She said Y has also, in the past, followed X’s lead.
The Mother’s evidence regarding the referral to Dr G
The referral from the GP to Dr G is dated 9 September 2017 and was tendered in these proceedings by Counsel for the Father. In that referral, under the heading “Presenting Problem” the following appears:-
Patient presenting with deterioration of metal health
‘I am remembering pretty disgusting things that have happened to me in the past that I didn’t remember and didn’t know of’
Says was drugged and abused and feels was groomed to be abused – believes was rapped whilst was drugged…
States was manipulated and feels was with someone was involved with and believed she loved;
Talks about event when was in hotel and someone came in and installed technology in the bedroom = believes was recorded without her consent
‘I am not the same anymore’
‘My memory is not the same’
‘Everyone around me seems to know a lot of information about me that I don’t know how they have’
Says is devastated these things happened – crying every time thinks about it = feels losing functional capacity
Depressed mood and anxious;
Says not feeling safe – states has a men that looks much like his ex-partner and states this person has been following her and seems to know her routine etc – says followed him one time and states has nt seen his face – believes might be an imposter instead of actual ex-partner; states he’s not threatening = not feel needs protection from him = denies carrying weapons etc;
Believes this man is on upper ranks of police force;
Denies suicidal thoughts;
[sic]
When cross-examined about the contents of the referral, the Mother said that in 2017 she was very confused about what might have happened to her in relation to her concern that she had been drugged, abused and raped. As recorded in my earlier judgment, at paragraphs 38 and 39:-
38. …She said she had experienced images going through her mind, or flashing across her mind, and she did not know where those images came from. She said she did not know at the time what may or may not have happened to her, that there were several men in the images that crossed her mind, including a man on top of her who she did not know, in a location she did not recognise. She said at the time she did not know if “it” had happened, was confused and had no explanation as to why those images crossed her mind. She said she now knows that nothing happened to her.
39. She also said that by the time she was about to see [Dr G] for the first appointment she had already “completely worked out the entire first paragraph [of the referral] had not occurred”. She said she asked her GP to delete it, and provide a new referral. She said her GP insisted on keeping the referral as it was. She said she also told [Dr G] to ignore that part of the referral, but [Dr G] thought it was a “good idea” to explore why those images had crossed her mind, to which she agreed.
When cross-examined about the reference to those concerns she had had about being followed, the Mother said she did not know the identity of the man or men who had been watching her. She said during a lunchbreak at work and while she was at the park, someone appeared in front of her, approximately 15 metres away. She said he was on his telephone, but was looking directly at her, and grinding or gyrating his hips in her direction. She said she took that to be “sexual harassment” and was confused, as she was not sure whether he was a stranger or someone she knew. She said she thought perhaps the person looked familiar, but she was not sure. She said he had not followed her but had approached her. I gained the impression from the focussed manner in which the Mother gave that evidence that this was an incident about which she had given considerable thought. She seemed clear that the man’s actions were deliberate and aimed at her, and she was trying to understand the meaning behind it.
The Mother said that in relation to her concern about people seeming to “know her routine”, she had seen some strange people and “random appearances” of people. She said these people would look directly at her or stare at her. She said that there were two men who looked similar to the man who had been on his telephone and gyrating his hips towards her in the park. She was “trying to figure out if they were harassing” her or attempting to follow her. She said she remembered those two men only after the “park incident”, which caused her to think back and remember the two other people who had been staring at her.
The Mother said she had thought there may have been a connection between the man she had seen on her lunchbreak at the park and the other men who had been staring at her. She said that these events had definitely happened in the months leading up to May 2017, although she said she had not been excessively worried about it at the time.
The Mother’s evidence regarding her attendances upon Dr G
The Mother attended Dr G between September 2017 and May 2018. The notes are therefore in excess of 18 months old.
Although Dr G’s notes were tendered in part, Dr G was not called to give evidence. In those circumstances, there is limited weight to be given to what is recorded in those notes. It is apparent in his notes that Dr G queried whether the Mother suffered from a delusional disorder and/or major depression or had personality issues. He also queried whether she had issues with trust and confidentiality, suspiciousness, hypersensitivity to privacy, and/or a distorted perception and belief system.
Notwithstanding these matters, Dr G did not apparently make any notifications to DHHS. That would suggest that if Dr G had concerns about the Mother’s mental health functioning, it was not to the extent that he felt the children were at such risk that would obligate him to contact DHHS.
In the notes of the Mother’s attendance on 14 February 2018, Dr G recorded that the Mother had bruises and cuts on her right upper arm. This was three days after the incident that occurred in the parties’ bedroom.
Dr G’s notes include many references to a man named Mr N, with whom it appears the Mother had been in a relationship. According to Dr G’s notes, she described ‘Mr N’ as having multiple personalities, potentially being a paedophile, being deeply delusional, possibly bi-polar, a violent offender and possibly having spent some time in hospital. At trial, the Mother steadfastly refused to answer any questions regarding ‘Mr N’ as well as refusing to answer many questions regarding her attendances upon Dr G. She did confirm that she had had an affair, which ended approximately three years ago. She would not say with whom.
The Mother repeatedly declined to answer questions in relation to the matters she discussed with Dr G about herself and ‘Mr N’ even when she was directed to do so on numerous occasions. She appeared to believe that the subpoenaed records should not have been produced to the Court, and accordingly, she would not answer any questions arising out of those documents. She said they were “private matters”.
The Mother’s continued refusal to answer questions, notwithstanding being repeatedly directed by the Court to do so was a striking and bizarre aspect of the Mother’s presentation at Court. It also meant I have been left significantly in the dark regarding the Mother’s mental health history and current functioning.
The Mother’s assertions regarding privacy and confidentiality
There were other matters regarding the Mother’s presentation and evidence that were also unusual, particularly around her views of privacy and confidentiality. These included the Mother’s earlier reluctance to agree to a Family Consultant to prepare a Family Report in these proceedings, on the basis that she had concerns about privacy.
The parties had initially engaged Family Consultant Ms O (“Ms O”) to prepare the Family Report. However, the Mother objected to Ms O’s continued involvement when she did not provide the Mother with a ‘privacy policy’. In her affidavit affirmed on 18 August 2019, the Mother deposed:-
…it is reasonable to request written assurance of preservation of confidentiality regarding receipt of such highly confidential and sensitive material.
The Mother exhibited correspondence to her then-solicitor, in which she wrote that it should be easy for a Family Consultant to provide a written confidentiality assurance, and that the inference the Mother drew from a refusal to do so was that Ms O would not be able to preserve confidentiality. The Mother deposed she could not accept Ms O’s assurances that all material provided would be used for the sole purpose of the preparation of a Family Report. This reflects an unusually suspicious and overly anxious attitude towards privacy and confidentiality.
The failure by the parties to jointly appoint a Family Consultant led to the Father filing an Application in a Case on 9 August 2019, to ensure the preparation of a Family Report prior to the Final Hearing. As part of that Application, the Father proposed that Dr H prepare the Family Report.
At the hearing on 19 August 2019 before me, the Mother again expressed concern regarding confidentiality. I provided her with a copy of the notation that accompanies all Family Reports, citing section 121 of the Family Law Act 1975 (Cth) (“the Act”) and the prohibition on provision of information. That provided her with sufficient reassurance about the confidentiality of the assessment process.
Additionally, the orders made on 19 August 2019 included the following notation, as drawn by Counsel for the Father that day:-
For the benefit of the Respondent, each professional appointed pursuant to these orders is bound to act professionally and will not be disseminating documents or information obtained from the parties beyond the preparation of reports and making relevant information available and known to the Court.
The Mother deposed that she ensures she has a wall behind her when entering her credit card details and also ensures that no-one is able to see when she enters the password on devices to connect to her home WiFi. She denied she was hypersensitive or paranoid regarding security generally, cyber-security or privacy, and stated that she was “sensible” and “put in measures to ensure cyber-security”. She recognised that other people have different attitudes to privacy.
The Mother said she suspected there have been breaches of her confidentiality on some occasions. She gave an example of a conversation with a work colleague at a Christmas party at the end of 2018. The Mother said she became aware from that conversation that the colleague knew she was attending upon a doctor, which was information to which the colleague should not have been privy. The Mother said the colleague did not answer her when she asked how the colleague knew of the medical attendances.
The Mother also asserted that the consent orders made on 19 March 2019 did not accord with the orders to which she said she had consented, as she did not consent to Notation D in relation to a list of agreed prospective mediators. The Mother was represented at Court on 19 March 2019. I have the benefit of having looked at the orders signed by the parties that day. The orders were partially typed and contained numerous handwritten amendments. Notation D is on those signed orders. The Mother’s signature is on each page. There seems to be no evidence to support the Mother’s view that there was anything untoward in the engrossing of the orders.
I further note that the Mother took it upon herself to redact various transactions in bank statements that were produced as part of the discovery process prior to the parties resolving their property dispute. The amounts were left showing, but what the expenditure was for has been blacked out in several entries. Her evidence about how and why that came to occur is confusing and unclear.
The Mother also expressed in her evidence that she has wondered whether her emails may have been hacked. She said there was an email missing that she did not recall deleting and that some of her letters had been changed. She was not sure whether the letters had been autocorrected, or whether there had been “some human intervention”. She said these things could not be explained.
Overall, I gained the impression that the Mother is highly – and at times unnecessarily - sensitive about privacy, and has a tendency to be somewhat suspicious. It seemed to me unusual that she would consider the possibility of information being wrongfully disseminated about her, or that her emails may have been hacked, in circumstances where there was more likely an innocent explanation.
The July 2018 incident at Suburb F School
I set out the evidence in relation to this incident in my judgment dated 7 November 2019 at paragraphs 32 to 37, and replicate same here:-
32. In relation to the incident at [Suburb F School], the Mother’s evidence is that in July 2018, she was attending a two day course at the school for parents to learn more about issues that can affect teenagers, such as drug use, depression and eating disorders. In her affidavit affirmed on 18 August 2019, the Mother deposed that the course was taught by [Ms Q], [X’s] then-Home Group teacher (“Ms Q”) and a [Ms P], who the Mother says was employed by [R Council]. She says on the second day of the workshop “[she] was the target of an unprovoked aggressive and vicious verbal attack by one of the teachers of the class”, in front of the other parents who attended the course. She said that some of the other parents were so “deeply affected by witnessing…what [the teacher] had done” that they requested that the school pay for counselling for them. She also says at paragraph 24(h) of that affidavit that [Ms Q] left the school two months later and has not returned.
33. In her oral evidence, the Mother described the incident at the school in more detail. She said the group had been discussing the topic of addictions, having covered some difficult issues, such as eating disorders. She said the teacher then changed her tone, and seemed to be trying to create an atmosphere of suspense and mystery. She said the teacher had a printed case scenario, which she distributed to all the other parents in the course, but not to the Mother. The teacher came right up close to the desk at which the Mother was sitting and said something along the lines of “[Ms Chiswick] tell us about your issue” and “come on, admit it, you’re a sex addict”.
34. The Mother said she asked the teacher if she was joking, but the teacher was “non-responsive”. Upon realising that it was not a joke, the Mother said she was very surprised and shocked. She asked the teacher who her employer was, and seemed to find it perplexing that the teacher did not appear to know the answer. The Mother told her to look on her payslip and then to notify the employer’s insurers. The Mother said the teacher was “way out of her depth” and that the teacher then quickly went around the classroom, collecting up the case scenario from the other parents. The Mother said she never saw the case scenario, and the teacher did not tell her that the scenario was about the Mother. However the Mother said the case scenario was meant to interrelate to what was being discussed and what the Mother described as “the aggressive attack” on her. She said she realised the teacher wanted to make her “part of the curriculum”.
35. The Mother said she was totally taken aback by the accusation that she was a sex addict, in front of the other parents. She said the teacher had “repeatedly and aggressively accused” her of being a sex addict. She said the teacher had crossed the line, making this an extremely serious, and potentially criminal, matter. The Mother said she was concerned about the fallout for [X], and for [Y] when he was due to start at the school the following year, both in terms of the duty of care of [Ms Q] and also given that the other parents present were witness to “potentially defamatory information”.
36. The Mother did not make a complaint to the school. She said this was because she was upset and disturbed, and at the time her energy and focus was on preparing for the upcoming Intervention Order hearing. It was evident from her tone in the giving of her evidence that she is still upset and possibly angry about the matter. She described it as “a deeply, deeply disturbing event”.
37. The Mother acknowledges that when she first told the Father about this incident, she told him the teacher had accused her of being a drug addict. She said she did that to present the matter to the Father “as a hypothetical”.
The Father said when the Mother told him about this incident she was rambling and appeared delusional. He described the story she told him as bizarre.
When giving her oral evidence, there was a quality about the Mother’s demeanour and description of the event that was disconcerting. I accept the Mother was accurately describing her perception of the event. However, it seemed most unlikely to me that the event had, in reality, occurred as she described. It seemed to me more likely that the teacher had made a joke which the Mother over-interpreted or misunderstood. The idea that the teacher had provided a hand-out that somehow included the Mother in the curriculum is far-fetched. For that to be true, the teacher would have to have known the Mother was attending, planned this confrontation well beforehand, and gone to the effort of creating print-outs to provide to the other participants that referred to the Mother, which she then deliberately provided only to the other participants.
The Mother appears to have significantly misunderstood the situation and has over-reacted to it. It seems likely she has created in her mind a story in which she is a victim of what she described as an aggressive and possibly criminal attack. The Mother’s categorisation of what in all likelihood was a light-hearted joke is very troubling. It is also bizarre that when she told the Father, she changed the story to one in which she was accused of being a drug addict. That this incident occurred at X’s school and in front of the parents of his peers had the potential for causing X embarrassment.
Evidence of Ms J
Ms J is the maternal aunt. She swore an affidavit on behalf of the Father on 8 August 2019 and was cross-examined at trial.
It is common ground Ms J lived interstate until three and a half years ago. The Mother has not allowed Ms J into her home since June 2017, so her evidence as to the state of the house is somewhat historical. Prior to that time, there was a period whereby Ms J collected the children weekly from school one afternoon, and cared for the children until the Mother returned from work.
Since June 2017, the children have spent time with their aunt for a few days each school holiday, when also spending time with the maternal grandmother. Ms J had previously taken the children to some of their activities approximately once per month. That also ceased in about mid-2019. Ms J has never been inside the Mother’s current home.
Ms J describes that the Mother:-
a)has substantially isolated herself from her family;
b)sees a “threat everywhere”, and has very negative thinking;
c)has expressed concern that her house is bugged, that she is being investigated and that the “authorities” are trying to take the children from her;
d)is a hoarder, and that from late 2014, when the parties were still together, the house was in disarray, and that “in the final couple of years at [Suburb E] it was like walking into a jungle with my sister’s clothes stored everywhere”;
e)on one occasion sat in a car outside the house watching her with the other two children in the car, whilst Ms J collected X to take him to football;
f)deliberately ignored Ms J when she attended Y’s end of year concert in November 2018;
g)exhibits “extreme rage at our mother, myself and my sister-in-law”. There are no details of what that means;
h)ceased Ms J from helping transport the children to events following a request by Ms J that she obtain a mental health assessment;
i)has called their brother a “child stealer”, and claimed that his wife had kidnapped the children when they asked to return Z two hours later than agreed following a visit;
j)suffered from anorexia and bulimia as a teenager, and she is now very thin; and
k)has accused Ms J and the maternal grandmother of having a sexual relationship.
In addition, Ms J deposed that the children have made comments to her, including that:-
a)Y told her he feels disconnected;
b)X has expressed anger about the Mother to her; and
c)Y has said “I just want my mum to fix her brain”.
The Mother says there is no basis to Ms J’s concerns, and that her sister is intrusive and highly critical of her. She said Ms J has “aggressively escalated” her intrusiveness, making “needling and highly critical inaccurate commentary” of the Mother and sending “unkind and inaccurate texts”. No such texts were produced by the Mother to support that assertion.
In terms of the allegations that the Mother is a hoarder and the home is in disarray, I note Ms J has not been inside the Mother’s home for several years. Further, she was last inside the home during the parties’ relationship. In those circumstances, any disorder in the household could be the responsibility of each of the parents.
The Mother confirmed she has little communication with her family members. The Mother said she did not believe that Ms J and the maternal grandmother were in a sexual relationship. She gave a confusing story about a cryptic conversation she says she had with the maternal uncle, in which he intimated that their mother and sister had had sexual relations but refused to give any details or context. She said she brought this allegation up with the maternal grandmother, who gave an oblique answer along the lines of “she did not know who got into bed first”. Despite that alleged response, the Mother maintained she does not believe that Ms J and the maternal grandmother engaged in a sexual relationship.
The Mother’s description in her affidavit affirmed on 18 August 2019 regarding her relationship with Ms J raises some concern again as to the Mother’s interpretation and outlook. She deposed that Ms J had “concealed” changeover plans from her, although no specifics of this were given. She deposed that Ms J refused to answer “reasonable questions”, again giving no details as to what the questions were. She described an alleged dispute that occurred 13 years ago, in relation to the blocking off of an external staircase when X was visiting, as “a hallmark… of [Ms J’s] oppositional behaviour and attitude to all sorts of discretionary decisions I make as a parent”.
The Mother deposed that she stopped Ms J from attending at her home as she “was snooping through items in my house”. In her oral evidence, the Mother said she knew Ms J had looked at the things on top of the Mother’s bookshelves, and that she would have needed a ladder or a chair to access those items. She said she had been “pilfering through” her belongings. These observations by the Mother appear to reflect an overly suspicious and distrustful attitude of Ms J, rather than any real wrongdoing by her.
Although I accept the Mother believes Ms J is unnecessarily critical and intrusive, I am not satisfied that is an objective interpretation of Ms J’s actions and behaviours. Ms J presented as a caring and compassionate sibling, who was most reluctant to participate in the Court proceedings, but felt obligated to do so in an effort to secure an appropriate outcome for both the children and her sister.
Ms J was clearly distressed and uncomfortable about giving her evidence. I found her to be a compelling witness who was motivated to swear an affidavit in support of the Father out of concern for both the children and the Mother. She has significant concerns about her sister’s mental health and the impact that has on the children. I find she was a truthful witness and I accept her evidence.
The Mother’s estrangement from her family
The Mother is substantially estranged from the immediate maternal family, comprising of her sister, mother and brother. Notwithstanding that estrangement, it does appear the Mother has facilitated the children maintaining a relationship with other members of the maternal family. Without the benefit of a psychiatric assessment, I do not know the genesis of that estrangement. Similarly, I do not know whether inferences regarding the Mother’s mental health or personality functioning can be drawn from those poor relationships.
I note, however, that the Mother presented as a vulnerable and fragile woman. The state of her relationships with her family members are such that she would not readily be able to seek out their support.
Dr H’s observations regarding mental health
The Mother told Dr H that she was “adamant that she had ‘absolute confidence’ in her mental health capacity to appropriately parent the children”.
Similarly to the Mother’s evidence at trial, Dr H recorded that there were a number of times during the interview that the Mother had “declined to provide information or was intentionally vague”.
In relation to the subpoenaed notes from Dr G, Dr H said that “[Dr G’s] notes do not provide much context and reflect the circumstances from over twelve months ago”. She went on to say that those records:-
…do however indicate that between late-2017 and mid-2018 [Ms J] was expressing delusional thoughts and presented with a distorted belief system. This included hypersensitivity in relation to privacy and confidentiality, which appears to have been present prior to separation and has persisted over time... however, no clear conclusions were made. Regardless, the simple presence or absence of a mental health disorder does not necessarily exclusively determine a parent’s capacity to care for children.
Dr H noted that Dr G did not appear to view the Mother’s presentation as requiring him to breach confidentiality and contact the Father, nor to make a notification to DHHS.
According to Dr H, the complaints made by X and Y about their Mother did not revolve around concerns about her mental health. She described X’s grievances about his Mother as a “litany of complaints [that] largely represented personal preferences rather than significant risk issues”. Those complaints focussed on issues over food, the kitchen being a mess and on him spending limited time with his Father. X did refer to the Mother being hypersensitive to data security, which he referred to as “paranoia” and about which he expressed confusion. Y was similarly critical of the Mother.
It was Dr H’s view that there is “a lack of evidence” to support the Father’s assertion that the children are at risk due to a deterioration in the Mother’s mental health. Dr H’s assessment was that if the Mother has an underlying mental health issue, there is limited evidence to support that it impacts on her parenting capacity to the extent that a change of residence is required. For instance, the Mother holds down employment and has maintained housing. Additionally, the children attend at school without issue and are progressing well. In Dr H’s view, the more pressing risk factor is that the children have been “exposed to and embroiled in the adult conflict”, and that the Father has “seemingly undermined [Ms J’s] parenting”.
Towards the conclusion of the Family Report, Dr H observed:-
However if the Court is not satisfied that the available information sufficiently addresses the concerns about [Ms J’s] mental health in the context of her parenting capacity, consideration could be given to an independent psychiatric evaluation for further clarity on the issue.
Dr H sets out that if there is to be a psychiatric assessment, such a report:-
…may be used to ensure [Ms J] has adequate supports in place (if required) rather than necessarily resulting in major changes to the care arrangement.
In her oral evidence, Dr H confirmed the Mother was “relatively evasive” regarding her mental health and that she was “very evasive” in relation to questions about ‘Mr N’. She said the Mother has some “odd” behaviours in relation to privacy and confidentiality, but confirmed there was little to indicate immediate risk to the children.
Notably, during cross-examination by Counsel for the Father, Dr H said that the parties have different or divergent belief systems which can cause children to struggle with their loyalties. She also said that “the disparity across the households is causing them considerable distress”. She agreed that some of the Mother’s “odd behaviours are impacting” on the children, but that there are “other issues that take precedence over that”. Dr H said there are a number of issues:-
…going on for the children that do not necessarily appear to be attributed to mum’s mental health or solely attributed to mum’s mental health.
Dr H maintained that whilst the Mother may have some unusual behaviours and beliefs, and may be overly suspicious, it did not appear that she was imposing any delusional beliefs onto the children. She also noted that Z does not make the same complaints as her brothers.
Dr H confirmed that the additional evidence that had been adduced at Court had altered her confidence regarding the Mother’s mental health, stating that it may impact her assessment “to a degree”.
It is clear that the issues for this family are not confined to questions surrounding the Mother’s mental health. However, the attitudes and beliefs of the Mother, her presentation at Court, and the content of her evidence taken as a whole appear to me to be unusual. Her evidence had the flavour of anxiety, and she appears to have a heightened sense of suspicion, or perhaps paranoia, as well as an overly-vigilant attitude towards confidentiality. There was a sense that she is often on guard about people watching her and obtaining and misusing information against her potentially reflect a distorted belief system.
I do not have the benefit of a psychiatric report to identify whether or not these beliefs are problematic, or whether they are indicative of an underlying personality or mental health disorder which in turn impedes the Mother’s parenting capacity.
Whilst there are not currently the sort of “markers” that Dr H said would be expected if the Mother’s parenting were impaired, including poor school attendance or employment issues, I must be careful not to minimise the complaints that Y and X make about their Mother’s household. It was the view of Dr H that their complaints could be regarded as matters of “personal preference”.
However, having had the significant advantage of observing the Mother over a number of days and Court appearances, I am left with considerable disquiet as to her level of distrust, suspicion, and vigilance around confidentiality. Living in a household managed by a parent who is hypersensitive, anxious and overly suspicious is likely be confusing, embarrassing and stressful for the children. I am also concerned that the complaints by the children are not just personal preferences, but may be reflective of a somewhat disordered and chaotic household, which the older children have articulated as confusing, embarrassing and stressful for them.
The relevant legal principles
The legislation
Part VII of the Act guides the process in relation to the making of parenting orders.
Section 60B of the Act sets out the objects of Part VII of the Act. They are to ensure that the best interests of children are met and hence, the objects act as a guide:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Act requires that in deciding whether to make a particular parenting order in relation to children, the Court must consider the best interests of the children as the paramount consideration. My assessment of those best interests has been significantly hampered by the Mother’s refusal to be psychiatrically assessed.
When determining the children’s best interests, there are two primary matters or considerations and several additional matters or considerations which I am required to take into account. I will turn to those primary and additional considerations later in these reasons.
Section 65D of the Act directs the Court to make such parenting orders as it thinks proper. As to what is ‘proper’, and how the Court’s discretion is to be exercised, the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 at paragraph 18 said:-
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
Parental responsibility
Pursuant to section 61DA of the Act, I must apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. That presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence or abuse of the children. Alternatively, the presumption can be rebutted by evidence that it would not be in the children’s best interests if parental responsibility was shared.
I am satisfied that there has been family violence in this matter. However, despite the parties’ hostility and lack of communication, they both propose that the parties have equal shared parental responsibility for the children. Although I have some concern about the workability of that order, I will not stand in the way of the parties’ agreed position. Both parties have much to offer the children, and neither seems better placed than the other to make decisions for the children’s long-term care, welfare and development.
I must then follow the legislative pathway as set down in section 65DAA of the Act and consider whether an order for equal time is both in the children’s best interests and reasonably practicable. If the answer to either of those questions is no, I must then consider whether an order for substantial and significant time is both in the children’s best interests and reasonably practicable.
There is no requirement that the Court consider the question of best interests or reasonable practicability in any particular order, as per Beckham & Desprez [2015] FamCAFC 247. However, it is suggested by the Full Court of the Family Court of Australia in Starr v Duggan [2009] FamCAFC 115 at paragraph 38 that a logical approach would be to:-
first make findings concerning the relevant s 60CC factors;
then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
I shall follow that logical approach.
The primary considerations
Section 60CC(2) of the Act sets out the two primary considerations I must consider:-
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the event there is a conflict or tension between the primary considerations, greater weight must be afforded to the need to protect the children from harm and from being subjected or exposed to abuse, neglect or family violence.
The parties both agree the children will benefit from having an ongoing, meaningful relationship with each of them.
The issues of risk in this matter are focussed on:-
a)the Mother’s mental health, and whether this impacts on the children and her parenting of them; and
b)the Father’s inappropriate involvement of the children in the adult dispute and the consequences of same for the children and their relationships with the Mother.
It remains the Mother’s position that she does not have any diagnosed mental health disorder, and that her mental health functioning does not cause any risk to the children. I note the Mother maintains employment. I note further that the children attend school, where they are all doing well. There is no suggestion that their attendances there have been compromised, nor that the schools have expressed any concern regarding the children’s presentation or provision of food. These matters give me some comfort.
However, the refusal by the Mother to comply with my order that she be psychiatrically assessed has two significant implications. Firstly, that she will not comply with a Court order with which she does not agree is deeply problematic. It raises concern about her functioning in that she views herself as ‘above the law’ or having a choice regarding compliance with Court orders. That in turn raises concern about her capacity to be an appropriate role model for the children.
Secondly, there appears to me to be no rational or reasonable basis for her refusal to be psychiatrically assessed other than such an assessment would not have assisted the Mother’s case.
It is of significant concern to me that I do not have any expert psychiatric evidence as to the Mother’s functioning and whether her parenting capacity is at all impacted.
The additional considerations
Any views expressed by the children and any factors (such as their maturity or level of understanding) that the Court thinks are relevant to the weight it should give those views
X has expressed a strong preference to spend more time with the Father.
Dr H records X’s complaints regarding the Mother’s home to include that:-
a)the Mother ignores him;
b)the Mother is disorganised;
c)the Mother provides repetitive and poorly cooked meals;
d)the Mother’s home is not tidy with clothes in every corner of the Mother’s room, and with the kitchen and pantry being “a mess”;
e)the Mother is hypersensitive and “paranoid” about data security;
f)he can be himself at his Father’s home whereas at the Mother’s he feels as if “I have to just do what she wants from me”, and is punished for having his own opinions; and
g)living with the Mother is “one big cycle of stress and annoyance”.
In her oral evidence, Dr H confirmed that X cried twice during the interview, said his Mother has “serious problems”, “stuff in her head” and forgets things like important dates. She also said X said his Father is reasonable and logical.
Dr H observed that X’s language and phrasing “was adult in nature and suggestive of having been exposed to adult discussions”. She also noted that X blames the Mother for the parties’ separation, and described the Mother as “doing this to dad”. He was still angry about not seeing his Father for several months following the Father leaving the home in early 2018 and said he cannot see himself “really forgiving mum”.
Y also expressed strong and clear views that he wanted to spend increased time with the Father. Dr H described Y’s views as demonstrating “a degree of entitlement, particularly given his age and developmental stage”. Like his brother, Y spoke of having “a somewhat stronger bond” with the Father. Dr H observed Y’s complaints about the Mother as evidencing “a degree of alignment” with the Father. His complaints included that the Mother spends her money on make-up, cosmetics and a computer rather than on food and clothes for Y. Like his brother, Y said the Mother’s house is a mess, and that there are issues with the provision of food at her home.
Z also said she wanted to spend more time with her Father than is currently permitted. She proposed a week-about arrangement. She did not make the same complaints as her brothers regarding the provision of food or the cleanliness of the household.
I find that the views of Y and X have no doubt been encouraged, if not influenced by, the Father. However, given the overall evidence, including the Mother’s presentation at Court and her refusal to submit to a psychiatric assessment, I am not as confident as Dr H that their views are “suggestive of individual preferences rather than indicating risk concerns”.
It is clear the Father has undermined the children’s relationship with the Mother, encouraged them to make complaints about her, and fed their perspective that the Mother is ‘in the wrong’. However, I am mindful that in light of all the evidence, the boys’ views ought not to be dismissed as simply reflecting their alignment with the Father. They may, in part, reflect that. They also, in my view, may well reflect that there is a degree of unpredictability, uncertainty and disorder in the Mother’s household that the boys in particular find unsettling, uncomfortable and stressful. They may also indicate that the Mother has an underlying mental health disorder or world outlook that impacts on her capacity to appropriately parent or the children’s sense of stability and security.
At the time of the hearing, X was almost fourteen and a half years of age. The evidence at trial was that he continued to express strong and clear wishes to spend substantially more time with his Father than with his Mother.
Given the ages of X and Y, some weight needs to be given to their views. However, their views are not determinative, particularly given the Father’s undermining of the parental relationship and the influence this may have had on the children and their relationships.
The Mother’s proposal to not significantly increase time is likely to further frustrate the boys. It is likely to lead to their resentment of their Mother increasing, to feel they have not been heard or listened to. That may result in them becoming more resistant to her. Indeed, Dr H says that if the arrangements remain as they currently are there is a risk that “there will be further breakdown in the children’s relationship” with the Mother and that:-
…there will likely be ongoing conflict and disharmony in [the Mother’s] household, which could lead to irreparable damage in her relationships with the children.
The nature of the children’s relationships with each of their parents and other significant persons in their lives
Dr H had the opportunity of observing each of the parties with the children during the course of her assessment. The interactions between the Father and the children are described as enthusiastic, comfortable and cohesive, natural, excitedly competitive and jovial.
The children were less receptive to the Mother, with X “tuning out and engaging in an activity on his own”. The Mother primarily engaged with Z, although Y later joined, as did X. Dr H described X’s initial reluctance to join in and his disengaged presentation as being “somewhat deliberate”, with this attitude later softening. Dr H said that at times they did interact together, and everyone then seemed to be jovial, relaxed and enjoying themselves.
It is clear that Z has a close and loving relationship with each of her parents. The relationships between the boys and their parents, however, are not without difficulty. The Mother acknowledges that in particular, her relationship with X in recent times has become somewhat strained. Dr H went further, stating that there is a rupture in the boys’ relationship with the Mother.
It is Dr H’s view that the Father’s undermining of the Mother and her parenting has contributed to, if not been the cause of, the relationship difficulties between X and Y and the Mother. It is clear from my earlier observations that the Father has undermined those relationships and has overly involved the children in the parental dispute.
Whilst I agree the Father’s behaviour has contributed to the strained relationships, I do not accept it is the primary cause. I have significant concerns about the Mother’s functioning, her distrustful and suspicious outlook, and her estrangement from her family, all of which is likely to have impacted on the children and their relationship with the Mother. I add to that the concerns the boys have expressed regarding the Mother’s home, and the evidence of Ms J that I have already set out.
The extent to which the children’s parents have taken or failed to take the opportunity to participate in long-term decision making in relation to the children and to spend time and communicate with the children
Both parents have generally taken opportunities to participate in making decisions for the children’s long-term care and development, as well as spending time and communicating with them. As already observed, I have some concerns about the manner in which the Father involved the children in the dispute regarding Y’s secondary schooling, as well as concerns regarding the Father’s communications with the children.
The extent to which each of the children’s parents have fulfilled or failed to fulfil their obligations to maintain the children
The parties have met their obligations in this regard.
The likely effect of a change in the children’s circumstances, including the likely effect of a separation from a parent or other significant persons in their lives
It is likely that increasing the children’s time with the Father will impact the children in different ways. The children will likely be provided with some relief, as all three have expressed a clear desire to spend more time with him. Dr H recommended an increase to “an equal shared care arrangement”. There was no suggestion that the children would not cope with being away from either parent for a week at a time. Such a change would likely lessen tension and conflict in the Mother’s household. However, care needs to be taken to ensure that X and Y do not interpret an increase in time with the Father as a reward for poor behaviour towards the Mother.
Dr H also noted that entering an arrangement for equal time “ought not be entered into lightly”, with each parent needing to address issues in their parenting and/or interactions with each other, needing to put aside adult issues and learn to co-parent.
A change of residence to the Father’s household would be a significant change for all three children. They have always been cared for primarily by their Mother. Z in particular would struggle at least in the short term as she has a strong and clear connection with the Mother. She also has not expressed the same concerns as her brothers regarding living with the Mother. However, if the description of the Mother’s home and outlook as somewhat chaotic and disordered are accurate, and if the Mother’s world view is confusing and stressful for the children, they may all feel a sense of relief at living primarily with their Father.
The practical difficulty and expense associated with the children spending time and communicating with each parent, and whether that difficulty substantially affects the children’s right to maintaining personal relations and direct contact with both parents on a regular basis
The parties live reasonably close to each other. There are no practical difficulties or expenses incurred by the children having a relationship with each of the parents. There are, accordingly, no barriers to either shared care or any other arrangement on the grounds of reasonable practicability.
The capacity of the children’s parents and any other significant person to provide for their needs, including their emotional and intellectual needs
I have concerns about both of the parents in this regard.
As set out at length, I have significant concerns regarding the Mother’s mental health. What is relevant is, of course, not whether the Mother has poor mental health per se, but whether or not there are mental health issues that impact on the best interests of the children. The Mother’s refusal to participate in a psychiatric assessment of her functioning and the impact that her mental health issues (if any) have on her capacity to parent means she has wilfully and deliberately deprived me of key information in determining the children’s best interests.
I do not know whether the Mother suffers from any mental health issues, what her prognosis is, nor whether she needs psychiatric treatment. I do not know whether she would benefit from other supports or treatment. I do not know whether her views regarding privacy and confidentiality are within the spectrum of acceptable views, or whether they are symptoms of a broader paranoia, or evidence of an underlying mental health disorder or impairment. I do not know whether, or in what ways, those views and outlooks present issues to her parenting. I do not know whether she has depression, anxiety, a hoarding disorder, delusions or paranoid beliefs that impact her parenting capacity. As a result of the Mother’s determination to ensure the Court does not have that information, I cannot be confident in her ability to provide the children with a safe and predictable home. In my view I must act cautiously, and protectively.
The Mother’s refusal to be psychiatrically assessed is even more perplexing given that at trial, she said had a psychiatric assessment been ordered at the interim hearing in August 2019, she would “definitely have complied” with that order.
It is also clear I have concerns regarding the Father’s involvement and embroiling of the children in the adult parenting dispute. This has undermined X’s relationship with the Mother, and is likely to erode the relationship between the Mother and the other children in due course. It has caused the children to be distressed and confused and for X and Y to become overly empowered. The Father was substantially unable to see that any of the communications he had with the children were undermining of the Mother, or could impact negatively on the children’s relationship with her. His lack of insight into his behaviours and the impact on the children is of real concern.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents, and any other characteristics of the children the Court thinks relevant
I have already discussed the matters relevant to this consideration. I do add that in her oral evidence, the Mother described X as being “incredibly self-conscious” and that he gets very embarrassed about many things. Given those aspects of X’s personality, it is easy to see how he could find living primarily with his Mother difficult and stressful given her unusual presentation.
Attitudes to the children, and to the responsibility of parenthood demonstrated by each parent
Save as I have already set out at length, the parties have generally demonstrated appropriate attitudes to the children and their responsibilities to them.
Any family violence involving the children or a member of their family, and if a family violence order applies or has applied, any relevant inferences that can be drawn from the order
I have set out the evidence regarding this consideration. I prefer the Mother’s evidence over that of the Father regarding the incident at separation. The physical struggle that occurred between them, resulting in the Mother being struck, was unacceptable. It would have been distressing for both the Mother and the children, who were present in the house.
I note the Father was not charged. I further note the Intervention Order has expired, and no further incidents are alleged to have occurred and no further protection orders have been sought.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
In my view, it is in the children’s best interests that there be no further proceedings between the parties. I will accordingly not make interim orders and otherwise require the Mother to undergo a psychiatric assessment. She has already refused to comply with my order in that regard. I see no utility in repeating that order.
Orders to be made
It is abundantly clear that this is a very difficult and complicated case. There are significant issues with each parent and the case they presented to me. On one hand, the Father appears to have repeatedly and inappropriately involved the children in the dispute, and has engaged in communication with them that significantly undermines their relationship with the Mother. He demonstrated limited insight into how destructive this has been of the Mother’s relationship with X and Y. The brothers appear to be overly empowered. Both set out a number of complaints about the Mother to Dr H and expressed clear views that they would like more time with their Father.
On the other hand, the Mother’s presentation raised significant concern about her mental health and parenting capacity. She has steadfastly declined to participate in a psychiatric assessment, notwithstanding the concerns I outlined in my decision dated 17 November 2019. She also refused to do so despite the adverse inference she understood may be drawn against her as a result of her non-compliance with that order.
If I were confident that the Mother’s mental health did not affect her parenting capacity to the extent that it impinges on the children’s best interests, it is likely that those interests would have been met by a week-about arrangement. Such an order would have given the children additional time with their Father, together with the benefits that would flow from that. It would have also assisted in ensuring the children’s relationship with the Mother is preserved. Such an order would have enabled the children to have the benefit of both parents involved in their lives and day to day activities and give the children the time and space to enjoy being in each parent’s household. It would have the benefit of removing the children from feeling caught between their parents, with one parent winning and the other losing.
However, without an independent psychiatric assessment I do not have the confidence that the Mother’s mental health does not adversely impact the children’s best interests. Although I note that Dr H said that the markers of significant dysfunction were not apparent, I have some significant reservation about the Mother’s presentation and evidence and do not share her confidence.
Firstly, I am concerned that Dr H has minimised the complaints the boys have made about the Mother’s household as I have set out. Secondly, I had the opportunity of seeing the Mother give evidence over a protracted period of time. As already observed, her presentation was perplexing. She gave confused accounts of events that seemed bizarre, far-fetched and unbelievable. That includes the incident at the school, the incident in the park, her concerns around other people watching her, her concern a work colleague knew private information about her, her involvement with ‘Mr N’, her recounting of an alleged conversation she had with her brother regarding an incestuous relationship and a previous wondering by her as to whether she had been gang-raped.
Her refusal to answer multiple questions about her mental health and her involvement with ‘Mr N’ was puzzling. Her estrangement from her family was worrying. I should add that I accept the evidence of Ms J that the Mother has previously expressed concerns about her home being bugged. I also accept the Father’s evidence in that regard.
I was left with an impression of an emotionally fragile, very guarded, overly suspicious, hyper-sensitive and perhaps paranoid woman, with eccentric and possibly delusional beliefs around privacy and confidentiality. It seems to me that there are very likely significant stresses and strains on a household headed by such a parent. If what X and Y have reported is correct, there is likely a degree of disorder and unpredictability in the household as well. The Mother’s refusal to be psychiatrically assessed significantly heightens that concern. It also raises the question of inappropriate role-modelling, with the Mother seeing herself as about the law and that her concerns around privacy and confidentiality trump an order of this Court.
In those circumstances, I cannot be satisfied that an order for equal time is in the children’s best interests, nor that it would be appropriate for the Mother to retain primary care.
Doing my best, and weighing up all the competing considerations, I am satisfied the children’s best interests will be met by primarily living with the Father, and spending substantial and significant time with the Mother. Such an order is also reasonably practicable, given the parties’ proximity to each other and to the children’s schools. Additionally, the children should have the opportunity of spending times of celebration and special occasions with each of their parents.
The Father’s proposal that X spend time with the Mother in accordance with his wishes is not appropriate. It would place an inappropriate burden on X. It may well result in a further fracturing of his relationship with the Mother. It would leave him vulnerable to influence by the Father.
I am mindful that a change of residence will be difficult for Z, and she will likely struggle emotionally with the change. I am also mindful that her brothers may regard this change as justifying poor behaviour by them. However, I am satisfied that the Father’s home will provide a household in which I can be confident the children’s physical needs will be met and they are being cared for by a parent who is not labouring under a significant mental health or personality disorder. It is a predictable and orderly home, in which the children feel listened to and valued.
The orders I am making also reduces the children’s time in a home that is possibly disordered, and reduces the time the Mother can expose them to what seem to me to be her unusual and overly sensitive views, outlook on life and approach to people.
However, the Father must take significant care to ensure that he immediately desists involving the children in the parental dispute, and that he refrain from further undermining the Mother in the eyes of the children. Accordingly, he is required to forthwith enrol in and complete a Parenting Orders Program. It is imperative that the Father gains insight and understanding of his contribution to the dynamics between the Mother and the children.
On the basis that the Mother appears to be reasonably functional, aside from her unusual views and beliefs, I am also satisfied that the risks to the children in the Mother’s care are not such that their time with her needs to be supervised or significantly curtailed. The boys’ complaints focus on allegations of the Mother’s unusual suspiciousness around privacy and confidentiality, and that she maintains a somewhat muddled and disordered household. These traits of the Mother appear to impact on the children’s level of comfort and stress, which can be addressed by them primarily living in their Father’s home, but do not suggest that time needs to be supervised.
I draw comfort as well from the Mother’s capacity to maintain housing, employment, and the regular attendance of the children at school. This indicates to me that her mental health issues are not so overwhelming or that they impinge on her parenting capacity to the extent that more limited – or supervised - time is indicated. In these circumstances, I am satisfied that the children’s best interests will be met by an order that they spend substantial and significant time in the Mother’s care.
It is an option for the Mother to promptly obtain an independent psychiatric assessment to confirm her assertion that her parenting is not impaired by mental illness. If she did so, and the parties were unable to agree on care arrangements, that may constitute a sufficient change of circumstances such that further proceedings may be appropriate.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding two hundred and twenty-six (226) paragraphs are a true copy of the reasons for judgment of Judge Carter
Associate:
Date: 21 February 2020
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Procedural Fairness
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Consent
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Expert Evidence
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Judicial Review
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