Gilham and Gonzales

FAMILY COURT OF AUSTRALIA

GILHAM & GONZALES

[2016] FamCA 530

FAMILY LAW – CHILDREN

Family Law Act 1975 (Cth)

APPLICANT:

Ms Gilham

RESPONDENT:

Mr Gonzales

INDEPENDENT CHILDREN’S LAWYER:

Ms Baker

FILE NUMBER:

SYC

3472

2013

DATE DELIVERED:

1 July 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

22 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carr

SOLICITOR FOR THE APPLICANT:

David H Cohen & Co

SOLICITOR FOR THE RESPONDENT:

Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Peter Baker Solicitor

Orders

The child B born … 2001 (“B”) live with the mother from 3pm Friday to 9am Monday on a fortnightly basis with the option to stay with the mother for an additional two nights if he has discussed this with the mother and it is agreed by the mother.
The child C, born … 2003 (“C”) live with the mother from 3pm Friday to 9am Wednesday on a fortnightly basis with the option to stay with the mother an additional two nights if he has discussed this with the father and it is agreed by the father.
The children shall live with the father at all other times during school term.
The father is to ensure that C’s school counsellor is given a copy of Dr F’s report dated 3 February 2016.
Both parents shall engage with E Psychological Services for a further 12 month period to assist them to develop strategies relating to the parenting of the children and for that purpose the father is to inform the mother in writing of the therapist that he saw at E on 21 June 2016 and the mother is to contact that therapist. The mother is to provide the therapist with a copy of my Reasons for Judgment and a copy of Dr F’s report of 3 February 2016. I would request that the therapist, either with the parents individually or if possible, with them in joint session(s), develop with the parents strategies to work together in a businesslike manner to provide parenting to the children and particularly C which is consistent in both their households.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order 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 by this Court under the pseudonym Gilham & Gonzales has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3472 of 2013

Ms Gilham

Applicant

And

Mr Gonzales

Respondent

REASONS FOR JUDGMENT

On 19 May 2016 final orders were made that the mother and father have equal shared parental responsibility for the children B, born in 2001 (“B”) and C, born in 2003 (“C”) and that they share holidays, Christmas and New Year equally and spend time on Mothers and Fathers days with their mother and father respectively. Various other final parenting orders were made.
The outstanding dispute related to what time the boys would spend with each parent during school term. The issue to be decided is whether or not the boys will be spending 7 nights, 5 nights or 3 nights a fortnight during school term with the mother and time on the mother’s birthday.
The mother proposes the following (Exhibit 16):
That the children [B], born … 2001 (“[B]”) and [C], born … 2003 (“[C]”) live with the mother as follows:
a.   [C]:
i.From after school on Wednesday until before school on Tuesday in week 1; and
ii.From after school on Wednesday until before school on Thursday in week 2.
b.   [B]:
i.From after school on Friday until before school on Monday of Week 1; and
ii.That [B] be given the option of spending any additional nights to coincide with the time being spent by [C] with his mother.
Both boys for 3 hours on the mother’s birthday, should they not be living with her at that time.
The father’s proposal is for the children to spend time with the mother from 3pm Friday to 9am Monday each alternate week.
The Independent Children's Lawyer proposed the following (Exhibit 15):
5.1.That the children [B], born in 2001, and [C], born in 2003 (“the children”) shall live with the Mother for 5 continuous overnight periods each fortnight from 3pm on Thursday to 9am on the following Tuesday subject to Orders 2 and 3 herein.
5.2.That the child [B] shall have the option to return to the care of the Father after 3 nights, that is at 6pm on the Sunday, if he has discussed this with the Mother and it is agreed by the Mother.
5.3.That the child [C] shall have the option of remaining in the care of the Mother for an additional 2 nights that is until 3pm on the following Thursday (being a continuous period of 7 nights) if he has discussed this with the Father and it is agreed by the Father.
5.4.The children shall live with the Father at all other times.
The Independent Children's Lawyer submitted that as an alternative to block periods of five nights each fortnight, there could be a different configuration such as four nights in one week and one night in the off week.
The father was born in 1966 and is currently 49 years old.
The mother was born in Europe in 1969 and is currently 47 years old.
The parties were married in 1999.
There are two children of the marriage: B, born in 2001 (currently aged 15) and C, born in 2003 (currently aged 13) (“the children”).
The parties separated on 3 July 2006 and a divorce was subsequently granted on 12 May 2008.
Following the parties’ separation, the children primarily resided with the mother but spent regular time with the father.
On 18 April 2007 an AVO was made at the Local Court at Suburb G for a period of two years against the father.
In April 2007 the mother was admitted to Suburb G Hospital suffering from depression.
On 23 June 2008 the father filed an application seeking that the children reside with him.
On 25 August 2009 an expert report prepared by Dr F was released recommending that there be a shared care living arrangement for the children.
On 10 September 2009 final consent orders were made providing that the parties have equal shared parental responsibility.
In March 2013 the mother was admitted to Suburb G Hospital with a history of daily cannabis use and depressed mood with delusional and paranoid ideas. She was reviewed by a drug and alcohol clinician and was treated with antipsychotic medication. The mother says she recommenced cannabis after her discharge and was scheduled and readmitted to hospital. Over this time, the mother was in hospital for three to four weeks.
On 21 June 2013 the mother filed an application seeking Airport Watch List Orders. On 20 August 2013 the father filed a response seeking that the children live with him. On 21 August 2013 the children were placed on the Airport Watch List.
On 24 July 2014 an Expert Report by Dr F was released where she recommended that the children live with the father and spend time with the mother in a contact centre until her mental health had been treated and stabilised when unsupervised contact would recommence and the children should spend fortnightly overnight time with her. The wishes of the children to continue the shared care arrangement was not supported by Dr F. Dr F commented:
[The mother] presented as a concerning, unhappy woman with an actively psychotic mental state … My provisional diagnosis is of a late onset paranoid schizophrenia, which would be confirmed by the absence of illicit substance use …
[The mother] has minimal insight – she is aware she is not well but is in denial about have a psychotic disorder. She needs treatment with antipsychotic medication.
…
[The mother] undoubtedly loves her sons but has no insight into how her delusional beliefs undermine good parenting. She does not trust their father to care for them because she believes [Mr Gonzales] has been involvement (sic) in a conspiracy which has done harm to her and her mother. She fears her sons have already been abused and are under further threat.
…
While the children are not personally currently caught up in all of their mother’s beliefs (which could result in a shared “folie” if they become so), it is important there are no opportunities for this to occur.
On 21 August 2014 interim orders were made for the children to live with the father and spend time with the mother as agreed.
On 30 January 2015 PHaMs (Personal Helpers and Mentors Program) provided a report about the mother’s progress noting that she had been involved with their program since 3 September 2014. The mother at that time saw Mr H, a nurse practitioner psychotherapist on a weekly basis and was to commence sessions with Dr I, psychologist, on a fortnightly basis in February 2015. She had been adhering to monthly paliperidone injections since 23 September 2014 after initially taking a tablet trial on 1 September 2014. The report states that on 3 October 2014, after conducting a Mood Assessment Program test with the mother, Dr I reported that she was not currently presenting with psychotic symptoms. Similarly, on 29 January 2015 Dr J, psychiatrist, advised that the mother presented “as logical coherent, proactive, and with no negative symptoms.” The report noted no concerns of child abuse or neglect for the children while in the mother’s care and concluded that “gaining equal custody and or regular visitation rights to her children is in the best interests of [the mother], [B] and [C].”
On 1 February 2015 Dr J provided a psychiatric report where he noted that the mother was making “excellent progress” in her treatment. He diagnosed the mother with chronic schizophrenia “characterised primary by psychotic symptoms, particularly delusional beliefs of grandiose and persecutory nature, accompanied by formal thought disorder. She denies the experience of auditory hallucinations. She has a past history of a cannabis use disorder, however I am confident she is now abstinent from cannabis and has been for at least twelve months. Her abstinence has almost certainly contributed to her mental state improvement.” Dr J subsequently concluded, “Her psychotic symptoms have improved markedly on treatment. She reports resolution of her ‘visions’, and has developed insight that her experiences may be attributable to an illness rather than based in reality. She is compliant with all aspects of treatment and I have confidence she is abstinent from cannabis … I consider the absence of negative and cognitive symptoms of schizophrenia to be the most promising feature of [the mother’s] presentation. These symptoms, when present, could be considered of greater impact than psychotic symptoms, particularly with regards an individual’s long term ability to care for themselves, maintain independence, and maintain parenting capacity.” Dr J states:
Prior to treatment with paliperidone, [the mother] readily expressed her delusional beliefs. These were elaborate and of both persecutory and grandiose themes. Succinctly she believed she was descended from Mayan royalty, a belief she based upon experiences of visions, or dreams indicating this was true. She also believed her ex-husband had sold her into sexual servitude, and that her previous treating psychiatrist had also abused her sexually. She clearly held the beliefs with great convictions and would detail them at length, providing numerous examples of experiences she considered validated their authenticity. She also described her husband coughing in court in order to influence and disrupt her thinking, a form of passivity symptom. When describing these beliefs, she exhibited prominent formal though disorder. Since commencing paliperidone, [the mother’s] beliefs have gradually improved over approximately four months. The beliefs initially became less strident, thence less prominent, and she must now be pressed to discuss them. She now reports all of her visions have ceased since commencing the paliperidone, and she is spontaneously questioning the validity of her previous beliefs, both regarding her descent from royalty and her experience of being sold into prostitution … With treatment, she made early concessions she may have been ‘confused’, and now readily acknowledges her delusional beliefs could have been due to an illness … [the mother] demonstrates an absence of the other common, but non-psychotic symptoms of schizophrenia. This set of symptoms includes the negative and cognitive symptoms of the illness, including a lack of self care or neglect of hygiene, a lack of initiative and poor motivation, disorganisation, cognitive showing, loss of social skills, social withdrawal, and blunting of emotional expressiveness … [the mother] does report her mood as depressed, and that this is related almost entirely to her current lack of access to her children, although she also acknowledges that since her cleaning contract finished she feels she has little to do apart from attend mental health and employment agency appointments. She expresses her concerns for her children’s welfare, and that they are suffering from a lack of motherly love and care. This all appears understandable, and there has been no suggestion she holds ongoing delusional beliefs regarding her children … She questions whether [the father] provides their children with the love and attention they need. She does appear downcast, but she is not suicidal and she does not exhibit feature of a pervasive or severe depressive episode. I would anticipate that her mood would improve were she to again access her children on a more frequent basis.
On 4 February 2015 orders were made that the children spend time with the mother as follows:
23.1.Each Sunday from 9am to 6pm;
23.2.During school term, from after school to 7pm each Wednesday; and
23.3.From 9am to 7pm on 7, 9, 14 and 16 April 2015 as well as the Sundays that they would ordinarily be the mother.
On 17 March 2015 the mother tested negative to most drugs in a urine drug screen but tested positive to Benzodiazepines. No question was asked of the single expert about this test result.
On 20 May 2015 Dr J provided a report confirming the mother’s monthly attendances upon him and weekly attendances on a Mr H for treatment and that she has “remained stable without evidence of a relapse of her characteristic psychotic symptoms.” He stated the mother “does report lowered mood, primarily as a result of a lack of success in finding more suitable and fulfilling employment, and her limited contact with her children. This does not appear a pervasive depression however, and she is clearly pleased with the increased access she has to her children … [the mother] has completed two urine drug screens for cannabis since my last report, on the 23 April and 13 May 2015. These were with kits she provided, with the initial test being at her instigation rather than random, the second being conducted randomly by Mr H. Both were negative for cannabis, and I have remained confident clinically that [the mother] has been abstinent from cannabis.”
On 21 May 2015 a report was provided by PHaMs confirming the mother’s attendances on Mr H on a weekly basis and psychiatrist Dr J on a monthly basis. It noted that the mother did not present with psychotic symptoms. It says “It is evident that [the mother’s] recovery is progressing well, and she will endure to flourish and maintain a stable routine and lifestyle. I feel gaining equal custody and or increasing the visitation rights to her children is in the best interests of [the mother] and her children.”
On 22 May 2015 orders were made for the children to spend overnight time with the mother and orders increasing their time with the mother to alternative weekends from after school Friday to before school Monday and mid-week time each alternate Wednesday from after school until 7pm.
On 19 October 2015 Dr J provided a report confirming the mother’s attendances on him, her progress and change of treatment from paliperidone to an alternative antipsychotic agent, Abilify maintena. He states the mother “has continued to attend my monthly appointments, and to see [Mr H] weekly, and remains in weekly contact with her PHAMS worker. She has remained stable without relapse of psychosis … I remain confident that [the mother] is abstinent from cannabis. Although her urine drug screens have been widely spaced, this has been driven by a low clinical suspicion of cannabis use. [The mother] has remained anxious that the urine screens continue.”
On 20 October 2015 PHaMs provided a report confirming the mother’s attendances with them and their continuing treatment and assistance. It noted that the:
Medicare sessions with Psychologist [Dr I] finished as of March 2015 with no further sessions required at this time due to her marked progress toward recovery. [The mother] has also continued to adhere to the monthly antipsychotic injection as advised by her practitioners, with a significant improvement in her overall mood and motivation. [The mother] does not present with psychotic symptoms. She continues to present to appointments in a rational and stable frame of mind ... [the mother] continues to support and understand her children’s wellbeing by meeting with the school counsellor and Psychologist at E Psychological Services, and regularly provides feedback to her solicitor. I can again confirm that [the mother’s] home environment is suitable for children, after a [U Care] Case Manager attended a home visit appointment recently. It is evident that [the mother’s] recovery is progressing well, and she will endure to flourish and maintain a stable routine and lifestyle. I feel that gaining equal custody and or increasing the visitation rights to her children is in the best interests of [the mother] and her children.
On 21 October 2015 Mr H sent an email confirming that the mother tested negative for cannabis when tested on 12 August and 21 October in random urine drug screens.
On 3 February 2016 Dr F provided a report recommending that in addition to half the school holidays, the children spend 5 nights per fortnight with the mother on the basis that the mother ensures that the children attend their sporting activities.
On 2 March 2016 Mr H wrote a letter providing details of the mother’s progress with treatment and therapy. He states:
[The mother] is reliable and responsible with her treatment.
…
The prescribed treatments for [the mother] have been beneficial in terms of stabilising any symptoms of mental illness. [The mother] has no psychotic symptoms and her depression seems to have lifted.
During our work periodically we have done a random drug urine screen. [The mother] has never tested positive for cannabis.
In my opinion, [the mother] remains focussed on her children’s welfare and on effective shared parenting for her children. We often discuss these issues in our work together and I am aware that [the mother]has made efforts to communicate with the psychologist who works with her children.
As indicated above, on 19 May 2016 final parenting orders were made by consent providing for the parties to have equal shared parental responsibility. Agreement was also reached in relation to the children spending time with their mother for half the school holidays and on other special days. Pending this hearing, the children were to live with the father at all other times. As indicated above, the remaining question is what time the children will spend with their mother during school term. The father and the children are the members of the father’s household but Ms K, the father’s partner, and her two children also reside in that household on occasion. The father said that his partner resides at his house three nights per week and on those nights her children reside with their father. The father said that he and his partner swap households on and off.

The mother says that she has received a great deal of benefit from treatment with PHaMs. She states:
I note the concerns of [Dr F] in her report which was released on 24 July 2014 about my mental health and in particular that I was suffering from psychotic episodes which were exacerbated by my use of cannabis. Following the release of this Report, I then sought treatment and assistance from PHaMs which provided me with substantial support as well as ongoing treatment by Consultant Psychiatrist, [Dr J]. [Dr J] provided diagnosis and treatment by way of paliperidone injections on regular basis which I have remarkable improvement in my mental health and enabled me to provide the children with proper care.
…
I have been compliant with all treatment and therapy recommendations, including attending fortnightly appointments with PHaMS which I do on my own accord. I have been feeling well overall, with high motivation and a positive outlook. I have re-engaged with my social networks and often meet with friends to socialise and for mutual support. I have maintained my hobbies and interests of painting and writing; I exercise daily every week, and am developing goals to improve other areas of my life (including physical health and wellbeing). I have maintained employment for 2 years, and was able to save enough money to purchase a motorcycle for ease with transport.
I am continuing to attend professional development courses to improve my employment opportunities, and remain motivated to look for other fulfilling opportunities with increased hours. I feel capable and motivated to care for and look after my children for the suggested time proposed by [Dr F] and the Independent Children’s Lawyer.
The mother says that she has a strong attachment and bond with the children as they do with her. She states:
My children and I constantly share quality time together. As a family, we often watch movies, go shopping, go to the beach or park, visit friends, play games, and we share meaningful conversations and memories. We regularly discuss their school lives, friendships, and their interests and hobbies.
…
[B] has told me that he would like to spend the Wednesday overnight every week with me. He does not like the Thursday to Tuesday arrangement due to soccer commitments.
[C] has crucial development years ahead of him, and has missed formative attachment time with me; therefore 5 nights at a minimum per fortnight would be highly recommended and beneficial for [C].
In his affidavit of 10 June 2016 the father sets out his reasons for opposing the mother’s proposal:
In my conversation with my eldest son [B], he informed me that he wants the arrangements to remain as they are [a reference to the arrangements that have been in place since the orders of 22 May 2015]. He also mentioned he believes [C] wants to spend half the time with his mother because “she does everything he wants and treats him like a baby”. [C] is almost 13 years old and sleeps in his mother’s bed. I am concerned that [C] feels sorry for his mother but also believe it is affecting his development.
[C] is still experiencing learning difficulties at school. The mother doesn’t show any interest in the children’s education. She does not help them with their homework, attend parent-teacher interviews, liaise with the school or the teachers involved in assisting [C] with his learning difficulties.
On the 25^th May 2016 [a Wednesday night], [B] had soccer training. Instead of taking [B] to his training or asking a third party as ordered, the mother took [B] to the nearest train station which was [Suburb L]. [B] took the train by himself around 5.30pm to [Suburb M] station. He then walked about 1km in the dark through an industrial area to his training. The mother would not have been aware if he arrived safely or not. If the mother is unable to take the children to their training, the recommendations of [Dr F], is that the children not being with their mother through the week, should be implemented.
On Saturday 4^th June 2016 [C] had team photos for rugby league. The manager rang [C] in the morning to ask if he could come. [C] told the manager he could not get there because his mum had a motorbike and it was raining. The field is approximately 2.5kms from the mother’s residence. The mother could have taken the bus as there is a bus stop 2 streets away or even a taxi which would have cost less than a packet of cigarettes that the mother smokes.
The mother states that she would like to have more time with the children. However, when the children are playing soccer or rugby league she does not stay at the field and watch them play. She returns to collect the children once the game is over. This does not demonstrate that she is taking an interest in the activities they enjoy.
The mother has never purchased school photos or sporting photos.
The mother has a history of breaching court orders as stated in my affidavit sworn on the 19^th August 2013. On the 5^th May 2016, the children were in the mother’s care and did not call me as ordered by His Honour Justice Watts on the 19^th May 2016. I am of the firm belief that the mother will continue to breach the court orders in the future.
The mother is an habitual user of illegal drugs. She is compliant during court procedings (sic) but engages in the activity afterwards. I have not seen the results of any drug tests since 2014.
On 8^th June 2016 [a Wednesday night], instead of bringing the boys home personally, the mother allowed them to walk home by themselves at 7pm. By then it’s dark, and I believe, unsafe. If the mother can’t walk them home personally, she should organise a safe third party to bring them.
The father says that “the children live in a stable and loving home environment … [and] are in a routine which commences after school”. He explains that during football season “[B] plays soccer and has training Tuesdays, Wednesdays and Thursdays. On Tuesdays and Thursdays he trains from 7pm-9pm for his local club, [Suburb N] Division 1 under 16’s. On Wednesdays [B] trains for the district team. District Training is 6.30pm-8pm at [O Park, Suburb P]. He is currently playing in a higher age group. [C] plays rugby league and trains from 6pm-7.30pm at [Q Park, Suburb L]” on Tuesday and Wednesday nights.
In her oral evidence, the mother confirmed that she allowed B to travel by himself to sport training by public transport. She stated that B was happy to do this and she perceived no danger in him doing so. However, while the mother said that the walk from the station to the training field was one kilometre, she agreed that she had not seen the route. Further, she did not ask C to call her from his mobile phone to advise her that he had arrived safely. The mother explained that she thought it was more appropriate for B to do this than for C to stay at her house by himself for approximately 40 minutes while she drove B to training, dropped him off and returned to her home. The father disagreed with this and said it would be more appropriate for her to take B to training and leave C at home for 40 minutes by himself. His position is that if the children are in the mother’s care she should take all responsibility for them. He was not prepared to assist the mother by driving B to training if the mother dropped him at his house, which is five minutes away from the mother’s. He was also not prepared to assist the mother in transporting the boys on other occasions when they were in her care including on Saturday sport games. The father conceded during cross examination that the road that B walks on to get from the train station to his training field is a main street. However, the father said that he still maintained that the mother allowing B to do this indicated her poor attitude to the responsibilities of parenthood.
The mother said that she did allow the children to walk from her house to the father’s by themselves in summer time. However, now it is winter and gets dark she takes them on her motorbike one at a time.
The father gave evidence about a more recent incident which supported his concerns about the children in the mother’s care. The father stated that B had told him that he had gone to the movies with his friends by public transport. After the movie, he caught the train from Suburb G Station to Suburb L Station, which is four stations, by himself and then the mother collected him from Suburb L station at 9:30pm where he was waiting by himself. Dr F opined that given B is 15, the arrangement she had put in place for B on this occasion was not inappropriate and I accept that is so.
In her oral evidence the mother explained why she did not always attend at the children’s sport games. She said that when she attends the father will also turn up, making her and C feel very uncomfortable. She described an incident where the father had screamed at her and people made fun of her and laughed at her. The father did not accept he had screamed at the mother at sporting events. The mother says that B would rather that she does not come. An order was in place from 2009 to 2012 preventing the father from attending the children’s sport matches when it was their time with the mother. The mother said that she would like an order made again to the same effect. The father said that he would not agree to such an order.
In her interview with B for the February 2016 report, Dr F states that when asked how many nights per week he would like at each parent’s home, B wrote, “from one night two days to three nights with Mum”. In his message to the Judge he wrote “I’m quite happy with how the way things are going now but I want to have the option to go spend time with the other parent if I want”. C said that he “wanted to spend “half and half” time with each parent.” In his message to the Judge he wrote, “I would love to have shared custody, one week each. If it’s not shared and continues to be the same arrangement like it is now, I will be very sad”. C’s expressed views have to be understood in light of the comments by Dr F about C’s maturity as discussed below.
As the children were drawing with the father in the interview, “the boys were asked if they would like individual time (“not for long periods”) with their mother. C responded he was “not sure”, commenting he would miss B. B replied it would depend if he and C were fighting, at which times it is better if they are separate. Otherwise, he preferred them to be together. Asked his opinion, [the father] declared it depends on “how they feel”, whether they want to be together or spend time with their mother separately. He commented, although they fight, they still miss each other when separated.”
In summary, Dr F states:
[C] and [B’s] messages to the Judge are not surprising, given their temperaments, ages and developmental stages.
It would be appropriate to give [B] more autonomy, allowing flexibility in where he spends time, particularly
i) during holidays and
ii) if both parents are aware of his whereabouts and approve of his activities if he is not with one of them
The difficulty with such an arrangement lies in the parents’ lack of trust in, and failure to cooperate with, each other in recent years. If this persists and they are unable to respond constructively (ie in [B’s] interest) to his wishes, prescriptive Orders for [B] should help provide him (and them) with structure and containment.
[C’s] behaviour in 2015 has indicated he has been struggling with the changes in his life, particularly moving to live with his father, less time with his mother, beginning secondary school and, probably, early adolescent hormonal changes.
Without doubt, his parents and stepmother need to have a reasonably similar approach to managing him, especially responding to him firmly, without anger or aggression, and with clear expectations on him. He will need their guidance and supervision, as well as the school’s and his counsellor’s assistance, to enable him to become more emotionally regulated.
This consistent, coordinated parenting must happen in the next year, [the report is dated 3.2.16] to minimise the possibility of ongoing emotional and behavioural problems in [C]. He is not sufficiently mature to understand the consequences of his choices, which includes his wishes for his living arrangements.
It seems clear [C] loves and has an attachment to both of his parents, although he finds his mother’s style of engagement more emotionally nurturing. Interestingly, despite the conflict he has with [B], [C] was not keen to spend time with his mother separate from [B].
[The father] continues to be committed to his sons but appeared resistant to think about what might be happening for them and their mother, other than how he and [the father’s partner] perceive the situation. They remain markedly critical of [the mother’s] parenting capacity.
Although holding “black” and “white” beliefs, their perceptions are understandable, given the years they have tried to deal with the boys’ unwell mother, which has led to a lack of trust in her and her treating mental health practitioners.
[The father] remains angry her delusional allegations about him were believed and has felt unsupported during the Court proceedings. Unfortunately and significantly, both of his sons commented on his volatile anger, which upsets them.
He needs to find a way to contain such feelings around them, particularly if his anger is associated with their mother. He correctly commented on his need to be “more positive” in his parenting and must attend to this as a priority.
[The father] undoubtedly cares for his sons and remains fearful of the impact of their mother’s illness on them. He has unsophisticated and misinformed views on her mental illness, which is hardly surprising given he was negatively incorporated into her delusions and he has no personal history of psychiatric disorder.
[The mother] has recovered from the acutely psychotic state she presented with in 2014. I have noted her treating psychiatrist [Dr J’s] reports on her dated 20 May and 19 October 2015. I do not dispute his assessment of her insight, abstinence from cannabis, compliance with medication and other necessary interventions and his comments about her prognosis …
[The mother] demonstrated a good understanding of her sons’ personalities, difficulties and needs but showed no insight into how her acute illness impacted on her parenting of them.
However, given her current general competency with her day to day life and her efforts to realise appropriate future aspirations, I believe [the father] is now being overly critical of her parenting. Concerningly, he has a perception she is “lazy”, which is something [B] also attributed to her.
[The mother] having more time with her sons is highly likely to be a motivating factor for her to continue to appropriately care for her mental health. She appeared genuine in her wish to more ably provide for them and be part of their lives.
Her psychiatric disorder is not a current contraindication to her spending more time with her sons.
However, she must be careful to manage the amount of stress in her life, to prevent risks of relapse into cannabis use and possibly an acute exacerbation of her illness. I am cautious about supporting her wishes to both return to nursing work and caring for [B] and [C] on a week about arrangement, particularly given [C’s] behavioural problems.
In her report dated 3 February 2016, Dr F recommends the following:
45.1.[B] and [C] continue to live for the majority of time with their father.
45.2.The young people spend increased time with their mother, either as a continuous block, Thursday PM to Tuesday AM every second week, or in two blocks over a fortnight (depending on which arrangement is the less disruptive to their academic and other commitments).
In total, [C] and [B] to spend five night a fortnight with their mother and half school holidays.
However this recommendation is conditional on [the mother] being able to support her sons’ sporting commitments without expecting their father to assist her with transporting them.
If she is unable to do so, or is unable to make an appropriate arrangement with another team member’s parents, she must accept this parenting limitation in herself and give their need (for peer relationships and respite from parental conflict) priority.
45.3.Both parents work with psychologist [Mr R] at [E] to provide reasonably consistent management and expectations of their sons, while still allowing for their very different parenting styles.
[The father] to have the option of deciding if he can be available to assist with driving the boys to their sports while they live with their mother.
45.4.[The mother] continues to manage her psychiatric disorder, as recommended by her treating psychiatrist.
In her oral evidence, Dr F explained that if the father’s concerns about C’s learning difficulties were correct, and if he is correct in saying that the mother does not assist C with his learning, then placing C with the mother for 50 per cent of the time would be too much as it is important that he is supported so as to overcome any learning difficulties. Therefore, she said it is important that C spend most of his time with the parent who is able to address those special needs.
An order was made by consent on 19 May 2016 that each of the parents have equal shared parental responsibility for the children. As a result, I must consider the requirements of s 65DAA Family Law Act 1975 (Cth) (“the Act”).
The mother is now seeking an equal time order in respect of C and substantial and significant time order in respect to B.
The Independent Children's Lawyer and the father (in different measure) are seeking an order which would satisfy the definition of substantial and significant time (s 65DAA(3) of the Act) for both boys. I firstly must consider the mother’s proposal that C spend equal time with each of the parents and consider whether C spending equal time with each of the parents would be in his best interests and consider whether or not C spending equal time with each of his parents is reasonably practicable and if it is, consider making that order.
If I do not make an equal time order for C and in relation to the orders both parents seek for B, I need to consider what arrangement is in their best interests and otherwise reasonably practicable for substantial and significant time with each of their parents.
I will now discuss the relevant considerations in relation to equal time for C in the alternative substantial and significant time for C and substantial and significant time for B. The question is what proposals are in each boy’s best interests and otherwise reasonably practicable.
In deciding what is in C’s best interests, I must consider the matters set out in s 60CC(2) and (3) of the Act.
The respective applications of each of the parties acknowledge the benefit to each of the children of having a meaningful relationship with both of their parents. The mother made positive comments about the father in her interview with Dr F. In her report, Dr F says that the mother opined “he’s a good father, has good things and bad things but he’s the person I chose to be a father, he always will be their father …” It was pointed out to the father in cross examination that he had not made positive comments about the mother. When asked to say something positive about her, the father said that it was positive that she was trying to help the children. He also agreed that she was a loving and affectionate mother and that the children love her. He agreed it would be helpful for the children if he said positive things about her in his household.
The need to protect the children from physical and psychological harm from being subjected or exposed to the mother’s neglect arising from her mental illness no longer is a matter of weighty consideration in circumstances where the mother is continuing to see Dr J and on 19 May 2016 the mother consented to final orders in the following terms:
5. The mother is to forthwith direct and authorize [Dr J] or her treating psychiatrist from time to time to inform the father in writing, addressed to [S Street, Suburb T], in the event that the mother has failed to attend and/or engage in recommended treatment or if it has come to the treating psychiatrist’s attention that the mother has failed to take prescribed medication.
6. The Independent Children's Lawyer should prepare a direction and authorization in accordance with the preceding order, obtain the mother’s signature on that authorization and forward it to [Dr J] together with a copy of these orders.

The children commented on the father’s anger in their interview with Dr F. When asked whether an order should be made for the father to attend anger management, she stated that she had difficulty making orders for psychotherapy if the individual did not believe they needed to attend. In his oral evidence, the father stated that he did not believe his anger was so bad as to need to attend anger management therapy.
The views expressed by each of the children to Dr F and the children’s maturity and level of understanding have been set out above. The younger child’s views are expressed to Dr F in a way that creates an ambiguity. On the one hand he states that he would like to spend week about with his parents; on the other he says that he does not particularly want to be separated from his elder brother (whose expressed view is that he doesn’t wish to spend week about time with his mother).
The Independent Children's Lawyer interviewed the children on 23 May 2016. C stated that he wanted half and half time with each parent. He also said that he didn’t need to be at the mother’s house with B there. B stated that he would like to spend Friday to Monday on alternate weeks and every Wednesday for the evening only with the mother.
C’s attitude to being with his mother is a significant change in the view to that expressed to Dr F in the interview for the February 2016 report.
When assessing the weight to be placed upon C’s expressed view, I need to be mindful of the comments made by Dr F about the level of C’s maturity. Just because C has expressed the view at the age of 13, does not necessarily mean that when other matters are taken into account, his views should be entirely acted upon. In fact, Dr F for reasons discussed below, recommends that they not be fully implemented.
Each of the children now seem to have a strong relationship with their father.
The younger child loves and is attached to his mother and as Dr F has commented, he sees his mother as emotionally more nurturing than the father. I have some concerns about C’s relationship with the mother. The mother confirmed in oral evidence that C shares a bed her when he spends overnight time at her house. There is a bedroom set up for C at the mother’s house. In oral evidence Dr F indicated if this was still occurring then it may indicate some residual anxiety and emotional difficulties in C that the mother needs him and that he offers her comfort in a way that is inappropriate. The mother stated that she did not agree with Dr F’s opinion. She did not think C thought she needed him. She explained that C misses her so much he is not secure and loves being next to her so she lets him. The mother said that sometimes B also comes into the bed with her and the mother then gets out of the bed and goes to another bedroom however she says C will then wake up and call for her to come back which she says is evidence that he wants her there. The mother said that C had not reached puberty yet but the father indicated that he has. When asked, the mother did not provide her consent to an order preventing C from sharing a bed with the mother.
The children have a strong relationship with one another, notwithstanding their sibling rivalry.
There remains conflict between the parents and a perhaps understandably difficulty on behalf of the father to think in positive terms about the mother’s parenting capacity. There is no suggestion however that the father has not faithfully complied with orders of the court that have been made from time to time in respect of the children spending time with their mother.
In his oral evidence the father had difficulty accepting that the mother’s mental health had improved. He said that since 2007 (the start of these proceedings) there has been no improvement in the mother’s mental health. He said that even after seeing the mother in the witness box at the hearing he thought she was the same as she has been in the past. Initially in his oral evidence the father said he did not see a progression. Initially, he did not accept that the letter from Mr H dated 2 March 2016 was authentic as it did not have a signature on it. He said that it could be from a different date sometime previously. However, he agreed that the contents had not been made up by the mother. He agreed that the mother was receiving her medication by regular injection. He did not think her urinalysis results were inaccurate. In relation to what Mr H had said in his letter of March 2016, the father agreed there was consistency, in the plateau the mother had achieved in her mental status as a result of receiving the medication. The father agreed that in 2014 the mother was depressed, psychotic, using cannabis and hallucinating and there is none of those symptoms now. Ultimately in his oral evidence the father was willing to accept that the mother’s medical condition had improved.
Dr F is confident that an extension of the current arrangements that have been in existence since May 2015 in relation to the children’s time with their mother would not create a detrimental change for the children, although Dr F does recommend more autonomy for the elder child, particularly during school holidays.
I have already discussed the difficulties in the behaviour of the younger child and what Dr F has said about guidance and supervision of his needs.
On order was made on 19 May 2016 providing the following:
14. Both parents shall continue to engage the services of and engage with [E] Psychological Services for a further 12 months to assist in their parenting of the children.
The mother said that she had not made an appointment with E. She said that she had not done so as she believed that the father would be the one to make the appointment as he had done so in the past for the children. She explained that she was waiting for him to give her an indication of what was happening with the service. The father said that he had been in contact with E and had attended an appointment on 21 June 2016. The father said he had made the appointment about a month and a half previously. The father had not told the mother that he had scheduled or attended an appointment. He thought that the mother would make her own arrangements. The intention of the order that was made on 19 May 2016 was for both parents to be seen by the same therapist at E for the purposes of ensuring that both parents were adopting consistent parenting for C. It would be in C’s best interests if a further order was made which makes that intention explicit.
The practical difficulties in relation to the children spending time with the mother during midweek when it conflicts with sporting training commitments has been referred to above.
The father has demonstrated a capacity to provide for the needs of the children including emotional and intellectual needs. The mother’s capacity as detailed above was severely compromised by her serious mental illness which, according to Dr F, is currently being successfully treated and managed. Continuing vigilance by the mother to guard against relapse is necessary.
There is currently no allegation that there has been any family violence (the mother accepting that previous thoughts that she had about the father’s behaviour were delusional).
There is no other fact or circumstance that requires consideration.
Turning to the issue of what orders are reasonably practicable, the parents do not live a prohibitive distance apart. There are however significant impediments arising from the current conflict between them and their lack of capacity to communicate with one another which makes the implementation of a equal time arrangement problematic. That is the primary reason why Dr F was not prepared to fully support a week about arrangement notwithstanding C expressed the view that he would prefer that arrangement.
The other difficulty in relation to whether or not the mother’s order has reasonable practicality relates to the impact of the mother’s ability to get the children to midweek sporting training. In oral evidence, the mother stated that she was trying to sell her motorbike. She said that she had an unregistered car in her possession that she would register and make use of once she sold the motorbike. The mother said that having the car would make it easier for her to transport the children to sporting training and any other commitments they may have.
I conclude that the arrangements for the children which are in their respective best interests and otherwise reasonably practicable, are for B to live with the mother from 3pm Friday to 9am Monday on a fortnightly basis with the option to stay with the mother for an additional two nights if he has discussed that with the father and it is agreed by the father and for C to live with the mother from 3pm Friday to 9am Wednesday on a fortnightly basis with the option to stay with the mother an additional two nights if he has discussed this with the father and it is agreed by the father.
In relation to the mother’s application for time on the parent’s birthdays, the father opposed any specific order being made. I decline to make a specific order about it. This topic could be further discussed by the parties with the therapist at E to explore if any future agreement could be reached about time on the parent’s birthdays.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 1 July 2016.

Associate:

Date: 1.7.2016

[2016] FamCA 530

1 July 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Procedural Fairness

Remedies