H and K

[2009] FCWA 134

[2009] FCWA 134

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	H and K [2009] FCWA 134
CORAM	:	MONCRIEFF J
HEARD	:	23, 24 & 25 SEPTEMBER 2009
DELIVERED	:	16 OCTOBER 2009
FILE NO/S	:	PTW 4436 of 2006
BETWEEN	:	H Applicant/Father
AND
K Respondent/Mother
Catchwords:

FAMILY LAW - children - with whom a child lives - a child's views - best interests of the child

Legislation:

Family Court Act 1997 s 66A and s 66C

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr N Marsh
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Ms L Thomas

[2009] FCWA 134

Solicitors:

Applicant	:	Julienne Penny & Associates
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Paterson & Dowding

Case(s) referred to in judgment(s):

Nil

[2009] FCWA 134

Introduction

1 This is an application for parenting orders in relation to the two children of the

parties, [John KV], born [in] September 1995, and [Sarah KV] born [in February]
2002.

2 [Mr H] (“the father”) is the applicant and [Ms K] (“the mother”) is the respondent in the proceedings.

3 John and Sarah were separately represented by an Independent Children’s Lawyer (“ICL”), Ms Lucy Thomas.

4 The parties are unable to agree about the care arrangements for John and Sarah, nor are they able to agree about the parental responsibility for them.

Proposals

5 The ICL filed a comprehensive Minute of Orders Sought as a preferred outcome.

She seeks, in essence, that the parties have equal shared parental responsibility and that the children live with the mother during school term on each alternate weekend from after school on Friday until the commencement of school on Monday, the intervening Thursday night and one half of all school holiday periods with arrangements being made for special days separately from the usual order. The children would otherwise live with the father.

6 The father adopted the proposal of the ICL at the commencement of the trial.

7 This represented a departure from his initial position, particularly as to parental

responsibility. In his initial application for final orders he had sought sole parental responsibility for the children, but now supports an order for equal shared parental responsibility.

8 In her response to final orders the mother sought sole parental responsibility for

the children. At the conclusion of the trial she sought that the children reside with their father each alternate weekend and for a period equivalent to one half of the school holidays.

9 In closing, the mother’s position about parental responsibility was somewhat

equivocal, but overall appeared to be supportive of shared parental responsibility,
although with some reservations about how it would work.

10 In the end, the parties were close to what I considered to be an agreement about

the sharing of parental responsibility, although it was not expressed in those terms and
accordingly, it is left for me to decide that issue also.

The evidence

11 The father relied on three affidavits:

[2009] FCWA 134

• his affidavit filed 14 May 2009;

• the affidavit of his partner, [Ms C] also filed on 14 May 2009; and

• the affidavit of [Ms K-J] (the mother’s sister) filed on 15 May 2009.

12 The father and his witnesses were available for cross-examination. Ms K-J had

recently returned to her home [overseas] from an extended holiday in Australia. She
was cross-examined by telephone.

13 The mother relied primarily upon her affidavit filed on 29 May 2009 with its

numerous annexures and further documents introduced during the course of her
evidence.

14 The ICL had filed three reports prepared by the single expert witness, [Mr L], a consultant psychiatrist. Mr L published reports on 3 December 2006, 23 April 2007 and 11 August 2008. Prior to giving his evidence he had been provided with copies of the affidavits upon which the parties relied and to which I have referred.

15 The ICL also called a former family consultant attached to the court, [Ms B], to

give evidence.

16 Both Mr L and Ms B were available for cross-examination and were cross- examined, particularly by the mother.

Credibility

17 This was an unusual case in that I accept all of the witnesses presented honestly

and fairly in giving their evidence. The parties endeavoured to put forward evidence in a fair way and while the mother encountered certain difficulties, to which I will refer later, I accept that she genuinely believed her representations of the evidence to be the truth.

18 The notable exception to that was her evidence about her inexplicable failure to

comply with previous Court orders for random urinalysis testing, hair strand testing
and psychiatric treatment, which was entirely unconvincing.

19 None of the father’s witnesses were shaken in cross-examination, indeed, in each

case their evidence was reinforced by cross-examination. Similarly, the evidence of
Mr L and Family Consultant B stood without any serious challenge.

Background

20 The father was born [overseas in] September 1961. The mother was born [overseas in] March 1957.

21 The father and the mother, despite the fact they were in a relationship for some

eight years on the father’s case, and some 13 years on the mother’s case, have never
lived together.

22 The father and the mother each have children from a previous relationship.

[2009] FCWA 134

23 The father’s history is that he was married [overseas] in 1979 and had two boys, [L] and [B], of that relationship, which ended in 1982.

24 The father ultimately obtained orders for what was full custody of both boys

following the separation. He effectively brought them up as a single parent. They
migrated to Australia in 1989 with the consent of his former wife.

25 The father is from a large family of three sisters and two brothers. At the time

he decided to move to Perth one of his sisters and her husband were already living
there. At that time his sons were aged seven and five years respectively.

26 The mother similarly has two boys of a prior relationship, [D] and [L].

27 The parties’ children from these prior relationships are now adult and have a significant and meaningful involvement in the lives of John and Sarah.

28 The father’s version of the parties’ relationship is that it began in 1991. The

parties became friends and he says that he was assisting the mother financially as she had a limited ability to earn money and at that time had two young sons. The father says that the relationship broke down in approximately 1999, by which time John was aged four years. Following the breakdown of the relationship he says John stayed over with him every weekend by way of an informal agreement between the parties.

29 The parties continued in a reasonably amicable relationship and in May 2001, the father and the mother’s boys arranged a dinner for the mother to celebrate Mother’s Day. As things transpired, the parties ended up being intimate during the course of the evening as a result of which Sarah was conceived.

30 Although the father says that he was supportive of the mother throughout her pregnancy with Sarah they did not resume a relationship.

31 The mother’s version of events is somewhat shorter than the father’s and she

suggests the parties were in fact in a continuing relationship until after Sarah was born.

32 Although nothing really turns on it, and certainly my finding as to the date of the

cessation of the relationship does not impact upon my assessment of the credibility of the parties, I do prefer the father’s version of events. Although he was challenged about his version of events in cross-examination, he was unshaken as to his recollection and understanding of the circumstances.

33 The circumstances surrounding Sarah’s conception are also entirely consistent

with what the father claims was a reasonably amicable relationship. Clearly the parties were able to organise arrangements for the children in a cooperative and generally respectful fashion, and largely without any difficulty, until 2006.

34 In 2006 the father commenced these Court proceedings. I accept, as observed by

Mr L, that in all probability his motivation for commencing proceedings was not at that time to seriously disturb or change the arrangements for the children, but to create a situation where there was some monitoring or compulsion upon the mother to address what were emerging mental health issues.

[2009] FCWA 134

35 It is important to note that throughout the course of these proceedings and

throughout the trial the mother refused to acknowledge that she has any mental health
issues.

36 The wife’s mental health has been the central issue in the entirety of the proceedings between the parties.

Legal Principles

37 The principles that apply to this case are governed by Part 5 of the Family Court

Act 1997.

38 Section 66 of the Act provides:

(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.

(2)

The principles underlying these objects are that (except when it is
or would be contrary to a child’s best interests) -

(a)	children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)	children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)	parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

[2009] FCWA 134

(d)	parents should agree about the future parenting of their children; and
(e)	children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

39 The legislation sets out a pathway which I must follow in applying the relevant portions of the law to the facts in a particular case.

40 Section 66A provides that in deciding whether to make a particular parenting

order in relation to a child the Court must regard the best interests of the child as the
paramount consideration.

41 Section 66C provides that in determining what it in a child’s best interests, the

Court must consider the primary and additional considerations set out in subsections
(2) and (3).

Primary considerations

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;

42 I can proceed to determine this matter without any doubt that the children will

have a meaningful relationship with each of their parents. While I am not satisfied that the mother will be as supportive of the children having a meaningful relationship with their father as he is of the children having a meaningful relationship with her, I am satisfied that the orders I make in this case will be complied with and will give the children the opportunity to have a meaningful relationship with each parent.

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

43 Further, and importantly, I need to make orders that protect the children from

physical or psychological harm from being subjected to or exposed to abuse, neglect
or family violence.

Additional considerations

44 I must also take into account insofar as they are relevant the additional considerations set out in s 66C(3).

45 The two central features of this matter come down to a consideration of the

views expressed by the children as well as the weight that I should give those views and the capacity of each of the parents and any other person to provide for the needs of the children, including their emotional and intellectual needs.

[2009] FCWA 134

46 Whilst I will focus on these two prescribed considerations, that does not mean

that I have ignored the balance of them insofar as they are relevant and, in particular,
will make reference to them where applicable.

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

47 One of the functions undertaken by Mr L was to explore with the children, or more particularly John, his wishes as to which parent he should predominantly reside.

48 At the time of his last interview with John, John was nearly 13.

49 Mr L described John as:

“a very attractive and highly intelligent young man. He presents well and relates well to the examiner and shows no evidence of psychiatric symptomology. In my view his thoughts, comments and observations are well considered and he has a capacity to come to a conclusion as to what is best for him.”

50 That conclusion is certainly reinforced by observations made by Mr L where he reports of John that:

“He has come to the conclusion that the best thing for him is to live with his father and visit mother as stated above. This is the only solution that comes to his mind. He said that he is not saying this reluctantly but because he fully believes that this is the way it should be.”

51 And further:

“He feels that his mother is isolating herself and doesn’t really understand why. He believes that she is under a great deal of stress and much of it is generated by herself. He thinks there might be something wrong with her but doesn’t really know what that might be.”

52 John, it would seem, possesses great insight and has an ability to articulate very clearly his observations of his circumstances with great sensitivity.

53 This is also borne out in his observations of Sarah, who was of course, at the time of the interviews with Mr L in 2008, only 6½ years old.

54 Of Sarah, Mr L reported John’s views as follows:

“He spoke very warmly of Sarah who is now six and is learning to read and write. He said that she is too young to appreciate the kind of matters he brought up and is unaware of the difficulties that he averted to. He and Sarah love each other very much and are very close and he stressed that they could not be separated as this would seriously affect both of them.”

[2009] FCWA 134

55 In any event it was a common position between the parties that the children should not be separated, a position with which I entirely agree.

56 Mr L’s evidence given to the Court during the trial reaffirmed his opinion that John’s wishes should be taken very seriously and I intend to do so.

57 In doing so it is important that the parties understand that the outcome in this

case has not been one that in any way should be carried as a responsibility of either of
the children.

58 John’s expressed views, which are reinforced by comments made by Sarah who,

even at age 6½, may have had more insight than John gave her credit for, are but a
factor that influences my decision.

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

59 The proceedings were commenced by the father after the mother “withdrew

access” to the children. By the mother’s own account, she did this because she “could not rely on the father’s word and and [sic] I felt it was imperative a close eye was kept on both children at this time”.

60 The father reported to Mr L about occasions where the mother has tried to

prevent the children spending time with him and from having telephone contact with him. This was supported by John, who told Mr L that “[s]ometimes when his father rings Mother unplugs the phone and hides it in the cupboard.”

61 Mr L’s report of December 2006 noted that the mother’s actions in withdrawing

the children from contact with the father occurred prior to her hospitalisation. He states however that, in his view, “with the continuation of her current level of health and hopefully a swift resolution of this problem, her relationship with Father in a sense of amicably looking after the children should be re-established”.

62 He further notes that “I am of the view that if she continues to accept treatment

and supervision by [Dr B] she will continue to promote the relationship of the children
with their father”.

63 I note however that the mother is no longer in the care of Dr B and has failed to attend upon Dr B as required pursuant to Court order.

64 In his April 2007 report Mr L concluded as follows:

“I would particularly refer to the recommendation that she [the mother] remains under psychiatric supervision as I have the impression that she did very well while she was under psychiatric supervision and possibly has regressed a little since then.”

65 It is to the parties’ credit that they, for the most part, have been able to maintain

an amiable relationship. There have been some setbacks resulting, it appears, from the
mother’s health issues.

[2009] FCWA 134

66 I am of the view that both parties are willing and able to facilitate the

relationship between the children and the other party. I have some reservation as to the mother’s capacity to do this if she does not retain psychiatric assistance, but under appropriate care I am of the view that the mother will facilitate this relationship knowing it is in the best interests of the children.

(d)

the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from —

(i)	either of his or her parents; or
(ii)	any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

67 The father reported to Mr L that John had “spontaneously told him” that he

wants to live with the father and visit the mother. In his discussions with Mr L, John stated that he “felt very strongly” in those same terms. Mr L reported that John spoke spontaneously during this interview. Sarah has not expressed such a view and, in any event, is too young for me to have placed great weight on such views.

68 The two siblings are very close and have great affection for one another. It is not in dispute that the siblings will remain together.

69 John has expressed to Mr L that he is attending a new school which “he loves”.

He says he likes this school because the teachers “are nice and there was no bullying there”. John’s attendance at this school will not be affected by the orders that I propose making, similarly, Sarah’s schooling will not be affected.

70 The mother has not repartnered.

71 The father repartnered in about 2003. The children are very fond of [Mary] and

she is of them. The children spend three weekends of every four with the father and Mary. They also looked after the children during a period the mother was hospitalised.

72 John has reported to Mr L that the mother appears to be isolating herself and, it

would seem, the children as well. John is not permitted to go to his friends’ homes. He is not permitted to go out with the mother’s older sons on their own. He must be accompanied to the library. This was supported by the evidence of the mother’s sister.

73 The father provides the children with access to his extended family. The

children are close to the father’s other two boys and the father ensures they keep in contact. John was able to name members of his extended family, including a cousin who attends at the same school as John.

74 The father is supportive of the children having contact with the mother’s

extended family. It was reported that when John has access to the internet, while at
the father’s or the library, he contacts his mother’s family overseas.

(f) the capacity of —

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(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child),

to provide for the needs of the child, including her emotional and
intellectual needs;

75 I turn to consider the impact of the issues relating to the mother’s mental health,

the impact this is having on the children and her consequential capacity to properly
provide for the needs of the children, or recognise those needs.

76 The mother is steadfastly resolute in her conviction that she does not have any

mental health issues. As the mother put it to me during the course of the trial, because
she was “signed off” by the neurologist that is the end of the matter.

77 The mother has had two admissions to the psychiatric facility of [the hospital] - one voluntary in 2004 and one involuntary in 2006.

78 In July 2004 she was brought to the hospital after being found by police walking

around in a park, naked and disoriented. The discharge note signed by [Dr W], a
registrar in psychiatry, and [Dr B], consultant psychiatrist, records that:

“Her physical symptomology was largely normal and therefore she was
referred to Psychiatry.”

79 A diagnoses was made of “first episode psychosis, possibly related to THC use and secondly as a brief psychotic episode with maniform features.”

80 A follow-up was recommended with Dr W.

81 The mother had expressed concerns as a result of an episode where she was

shaking and fell to the ground. There was a subsequent neurological intervention with the mother being referred to [Dr DB], a consultant physician. His report dated 12 August 2004 is attached to the mother’s affidavit. He described her history as follows:

“She described her history as commencing one month ago, after she had been outside looking at the stars. While she was standing in the doorway of her house she suddenly fell backwards striking her head but without any loss of consciousness. She claims that she was alert, understanding everything, but unable to speak and waving her arms uncontrollably. She was assessed at [the] Hospital and discharged. The following night she was in a euphoric state. She walked to Wireless Hill Park, undressing as she went. She was found naked and taken to [the] Hospital where she spent 10 days as a voluntary psychiatric patient. She was briefly given olanzepine, but now takes no medications. She has smoked heavily for 32 years and uses marijuana every day. She rarely drinks alcohol.”

82 Dr B also reported:

[2009] FCWA 134

“My impression is that this is more of a psychological problem than a focal neurological. She has been under chronic emotional stress raising four children with minimal support. She also has been a longstanding marijuana user.”

83 Dr B went on to recommend:

“I’ve asked her to take aspirin 100 milligrams per day as stroke prophylactic at least until the echo-cardiogram result has been received. I told her that the two things she could do to most improve her health would be to stop smoking cigarettes and marijuana. She’s previously stopped smoking for 8 months and claims she is willing to do this. I do not think she is interested in stopping marijuana. I would like to review her in three weeks.”

84 It is this last passage in particular to which the mother referred as indicating there was no evidence of her having any form of psychiatric difficulty.

85 The fact that Dr B had recommended that she take aspirin (presumably as a

blood thinning agent) was, in the mother’s perception, clear evidence that the problem
was a neurological one, not a psychiatric one.

86 In taking this from Dr B’s letter the mother has focused on but one portion of his

report without having regard to the balance. Further, she appears to have ignored his comments in his follow-up letter of 2 September 2004 to the referring general practitioner when he reported:

“Dear [Doctor] – [Ms K]

[Ms K’s] echo-cardiogram was normal. She says that her speech and handwriting have improved. I was impressed by the fact that her conversation content is still slightly unusual and inappropriate. With good humour she reported that her teenage sons describe her as the “hippy dippy herbal”.

After half an hour of expiration of social issues I reported to her my concern. I believe that she has mild brain damage due to chronic heavy marijuana use. This boarders on mild schizophrenia. I was reluctant to confront her with this conclusion but she requested my frank opinion of her condition. I then urged her to cease using marijuana “for Sarah’s sake”. She has a 2½ year old daughter Sarah who desperately needs a healthy mother for another 15 to 20 years. Unfortunately I am not confident that [Ms K] has the insight or the motivation to take action. I do not think I can be of any further assistance but would be happy to see her again at your request.”

87 Dr B clearly identified psychiatric issues and also concerns about her lack of

insight or motivation to take action about the same. Dr B’s observations in that regard
were quite prophetic.

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88 Mr L, in his report in 2007, was of the view that the mother should remain under

psychiatric supervision. His report was subsequent to the involuntary admission in 2006. Of that episode he reported that “she [the mother] sees the episode of her more recent admission under certificate to [the] Hospital has been the result of a misunderstanding or false information. Nevertheless the hospital records suggest that there were some delusional beliefs and although she was released very quickly she remained under a CTO and on treatment”.

89 Mr L expressed deeper concern during the course of his evidence when certain

factual matters were put to him, for example, the fact that the mother will not go anywhere without her trolley which contains all of her court documentation and other documentation she considers relevant to these proceedings.

90 His concerns under-scored my own observations of the mother in court, where

she appeared obsessed about tangential matters that had little or no relevance to the
proceedings and her total inability to understand that they may not be relevant.

91 Mr L also noted that although Dr B had discharged her from his care recently, he

had made it clear that the mother could approach him at any time for further attention. She has not done so on a voluntary basis. Nor had she done so despite orders having been made on 6 July 2007 requiring her to attend upon Dr B“in accordance with his recommendations and otherwise take such medications as may be prescribed by the said psychiatrist”.

92 The mother explained her failure to attend upon Dr B as twofold. Firstly,

because the order referred to Dr B as her “treating” psychiatrist which, she said, he
was not, and secondly, because Dr B’s surname had been initially misspelt.

93 Despite the correction to the spelling of Dr B’s name and the clear acceptance of the fact that Dr B was not her “treating” psychiatrist, the mother still did not attend.

94 Along with the mother’s failure to comply with this order are her significant,

repeated breaches of court orders requiring her to have random urinalysis, or attend for hair strand analysis. The tests were ordered to determine the level (if any) of her drug use, given the observations made earlier about the impact drug usage may be having upon her psychiatric state.

95 The mother was cross-examined by the ICL about her failures to comply with

the ICL’s requests for her to attend for the taking of a urine sample. Despite nominating many appointments and making many requests, the mother never attended. As documented in an affidavit by the ICL of 2 July 2008, the mother raised various issues and questions, it would seem, in an attempt to either delay or defer or otherwise excuse her compliance with the requests.

96 For example, she refused to undertake the testing until such time as she was sent a letter advising her as to:

• how much it cost;

• where she must go;

• whether she gets any money back on Medicare;

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• what is the processing of such testing.

97 Subsequent written requests were made without response.

98 Telephone requests were then made in response to which the mother indicated that she refused to attend for such testing unless she received the request in writing.

99 She then raised the issue that she could not afford to pay for the testing. To

overcome the issue the ICL sought and obtained approval from the Legal Aid
Commission to have hair strand analysis undertaken at no cost to the parties.

100 Despite various arrangements being made for the mother to attend to have a

sample taken, she did not do so. Again, the mother raised issues that I considered to be specious and as a means of avoiding compliance with the orders, in particular, detailed and unnecessary requests for information about the process and her ultimate refusal turning on the fact that the final analysis would be carried out in the United Kingdom.

101 It is open to me to infer that, despite her claims to the contrary, the mother still uses marijuana regularly and I do so infer. consequences of their mother’s health issues.

102 The children are each of an age where they recognise and experience the

103 I have particular regard to the evidence of Mr L, the father’s partner, Mary , and the mother’s sister, Ms K-J.

104 Ms K-J was visiting from her home overseas as part of an extended holiday which took her, effectively, around the world.

105 She has been an elementary school teacher for 20 years and although she was

not proffered in any way as an expert, she clearly has experience dealing with
children.

106 She said that she had particularly wanted to visit the mother to “clarify what was

actually going on”. It had been a concern for the mother’s family that the mother had been hospitalised for mental health issues. In communications that the broader family had with the mother, usually in telephone calls, there had been growing concerns about the mother’s mental health and the impact on the children.

107 Ms K-J spent 45 days living with the mother and the children at their home. She

says she quickly became alarmed at what she saw. In her affidavit she stated that the
mother:

“very quickly began to often refer negatively to the court case and to the applicant. She often attempted to do this in front of or at least within earshot of the children. I made it clear I would not discuss this whilst the children were in the house, even if they were in bed. Rather I would speak about these adult matters on the weekends the children were with their father. The respondent dismissed that option repeatedly saying she had no

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time then as these weekends were when she had to work solely on court
papers.”

108 She went on to record that the mother “continually” referred to errors,

omissions, myths, truths and conspiracies in the court dealings, and had even asked her
whether other relatives [overseas] were part of the process.

109 She goes on to record that on 14 March 2009:

“the respondent spent the day showing me specific court papers that she deemed supported her claims. I soon realised what had specifically occurred over the years regarding her hospitalisation and diagnosis, and how the facts of what had actually occurred differed from the version she wanted to believe and was continually advocating.”

110 During her stay Ms K-J says that she was surprised that, on one occasion when

she was taking a daylight walk to the library with John, John had divulged that that was “the most freedom he has ever been given”. On another occasion when they were walking home from the library after 6:30 pm John had commented that he had never done that before.

111 During her stay Ms K-J was fortunate enough to be able to secure three nights

accommodation [at a resort] as a result of a last minute cancellation during the school holiday period. She said that she wanted to take the mother and the children to the resort for a family holiday. She had a four bed family room.

112 The children had never been to [the resort] but the mother was adamant they

could not go. Her stated reason was that she was awaiting court documents and a call “about the judge”. Despite suggestions by her sister that the mother could telephone daily from the resort to find out the status of the matter and, if necessary, leave [urgently] if the need arose, the mother was not persuaded. It was suggested that perhaps the children could accompany their aunt to the resort or, at the least, John could accompany his aunt to the resort and the mother could come with Sarah for a day visit. The mother refused to consider any options.

113 John, not surprisingly, expressed his anger and disappointment to his aunt.

114 The mother’s sister also made reference to fears expressed by the mother that

she has never received proper court documentation, that papers have been withheld and reports may have been tampered with or otherwise disappeared. She refers to the fact that the mother transports all her papers in a big blue trolley everywhere with her, which has a limiting effect on where the children can travel and the places to which the children can go.

115 An example of this was when the mother, the children and Ms K-J went to

[the beach]. The mother refused to join the others on the beach, but rather waited
above the beach with her trolley.

116 The mother’s sister also spoke about the sleeping arrangements in the household.

She observed that there were three bedrooms in the house and on her arrival she was

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given John’s room to sleep in. She subsequently learned that all three, namely John, Sarah and the mother, were sleeping in the one bed as the second bedroom had clothing in piles that prevented it being used. Ms K-J offered to help the mother clear up the bed to which the mother responded that “she didn’t feel like doing it now” and it was not attended to for several days. She also observed that when Sarah wanted to sleep in her own bed, the mother would repeatedly ask her if she was “sure, due to fears, darkness, etc”.

117 Through a somewhat unusual set of circumstances the respondent’s sister spent the remainder of her time in Perth residing with the father.

118 Ms K-J met the father as a result of an invitation for her to join him when the

children were with him, and his partner, to travel to Collie. The invitation was generous and entirely appropriate and, in my view, reflects the very nature of the father’s personality. In any event, it would appear that the relationship between the father, his partner and Ms K-J developed quickly and positively to the point where, when Ms K-J was requested to leave the mother’s home, accommodation was offered to her by the father and she accepted that invitation.

119 The circumstances that led to Ms K-J being asked to leave the mother’s home

show a singular lack of insight by the mother. The mother says that on 13 April she started to experience severe nausea with a pounding headache. She had been preparing a meal at the time which was then taken over by her sister and the children. Each of them came into her room from time to time to see how she was. It transpired that during the evening at a time when the mother was feeling slightly better, Sarah came into her room again and said “if anything happens to you Dad and John will look after me”.

120 In her affidavit the mother says of this:

“I found this most puzzling and as the days progressed Sarah followed me everywhere even sat outside the toilet while I was in there. I asked John if he knew where Sarah had heard this and he said he didn’t know. Sarah only shrugged her shoulders when I asked her why she would say something like that or if she had overheard anything but her following me everywhere and not letting me out of her sight was worrying.”

121 It would seem that the mother did not let this episode go and became overly

concerned and anxious about the statement Sarah had made. Ms K-J found the mother’s behaviour to be accusatory. It would appear that the mother attached a disproportional significance to what was in all likelihood a very innocent and caring statement by Sarah.

122 A statement in those words made by a seven year old child to an ill parent is, in

all probability, made to bring comfort rather than being implanted for some sinister purpose. Sadly, the statement was viewed by the mother as being the latter and it appears that the issue was not left to lie but ultimately led to Ms K-J being requested to leave the house.

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123 The inability of the mother to place an innocent interpretation on Sarah’s

comment and the consequences resulting from that failure demonstrate, in my finding, a significant lack of understanding and major perceptive difficulties on the part of the mother.

124 The mother has also in the past formed the view that the children have electronic

devices implanted in their heads, that computers should not be permitted in the house,
and that messages are received subliminally through radio transmissions.

125 The effect of the mother’s delusions has been, in an immediate sense for the

children, that they do not have internet access or working computers at home, which
has caused difficulties for John particularly, and will do so increasingly for Sarah.

126 There is an inevitable impact on the children’s ability to socialise as they have

an increasing awareness of the problems that face their mother, of having to balance their dealings with their mother as she is and then having to deal with their own social pressures.

127 A particular example of this arose over the proposed trip to the resort, to which I

have referred. The children were denied what would have been a wonderful opportunity because of the mother’s over-stressed connection with the process of these proceedings and a failure to see beyond that connection.

128 Similarly, in Year 7 John was denied the opportunity of going on a school camp.

The mother’s denial was based upon the fact that John has suffered long term from enuresis. John had managed to sort out, in discussion with the father, a way to go on the camp, be discreet about his problem and manage it himself.

129 The mother’s plan was to involve a third party and whilst I accept that she was

motivated positively, she did not perceive the embarrassment that that would cause for John. John refused to manage the problem in the manner suggested by the mother. As a consequence, John did not attend the camp much to his significant disappointment.

130 There have been occasions where the mother has prevented the father from

spending time with the children and, indeed, it was one of those episodes that triggered the initial proceedings. This was at the time the mother was involuntarily admitted to [the hospital].

131 Perhaps the greatest long term consequence for the children is that their mother

fails to recognise she has any problem and accordingly does nothing about addressing it or creating coping mechanisms. Accordingly, the mother’s psychosis is not being managed and there is a risk that the consequences for the children will deepen.

Parental responsibility

132 I must also make a determination as to who is to have parental responsibility for

John and Sarah. There is a presumption in favour of equal shared parental responsibility and in this case there is nothing in my finding that rebuts that presumption.

[2009] FCWA 134

133 Although the parties may have had some difficult times communicating and

whilst the mother’s mental health can impact upon the parties’ communication, I am satisfied that there is an underlying and common strength of respect between the parties and a recognition that the other would not knowingly make decisions that were contrary to the children’s best interests.

134 It was particularly refreshing in my opinion to have the father acknowledge that

although he had not (as he would have liked to have been) actively involved in the selection of John’s high school, he considered the choice to have been entirely appropriate and was prepared to openly recognise that fact. I have no hesitation in determining that an order for equal shared parental responsibility should be made in this case and I note the support of the ICL for that outcome.

Conclusion

135 I have decided that the parents should retain equal parental responsibility. I

must as a consequence of that decision consider whether or not the children should spend equal time with each of the parents, such as week about, or substantial and significant time.

136 It is my view that the best interests of the children will be met by the children living with the father and spending substantial and significant time with the mother.

137 The proposals made by the ICL provide for the children to spend substantial and

significant time with the mother – substantial in terms of quantity and significant in a qualitative sense in that the proposals embrace both school time and weekend time and holiday time.

138 This arrangement will give the children consistency during the school week as I

find that the facilities available to them at their father’s home are more likely to be of benefit to the children in terms of their educational needs, for example, access to a computer and the internet – benefits that may be restricted or disjointed by an equal time arrangement during school terms.

139 I am satisfied that the nature of the relationship between the parents, despite the

difficulties they have sometimes had, is supportive of the children spending significant time with their mother and I have no doubt that the father and his partner, Mary, will actively promote and support the mother’s ongoing involvement in school activities where she has had a significant involvement in the past. Further, I am satisfied that the relationship generally between the mother and the children will be respected and nurtured.

140 Overall, this has been a difficult matter to decide because each of the parties is strongly motivated towards the very best for these two children.

141 There is no doubt that both children are bright, well adjusted and deeply love

each of their parents. They are a credit to each of them. The children also enjoy close and loving relationships with their half siblings – which I am satisfied will continue in any event.

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142 However, given the mother’s denial of the problems that confront her and the

likelihood that they will impact more significantly with the passage of time upon the children, I am satisfied on balance that the best opportunity for these children to develop their full potential and maintain a meaningful relationship with each of their parents will be enhanced by them residing primarily with their father with orders made in the terms proposed by the ICL.

143 I therefore propose to make the following orders:

Proposed orders

1. All previous child welfare orders be discharged.

2. The applicant father and respondent mother have equal shared parental responsibility for the children, JOHN K-H born [in] September 1995 and SARAH K-H born [in] February 2002 (the children).

3. The children live with the mother during the following periods:

(a)	during school term time only each alternate weekend from conclusion of school Friday and in the event of a non school day from 3.30 pm Friday until the commencement of school Monday and in the event of a public holiday or a non school day until 5.00 pm Monday;
(b)	during school term time only each intervening Thursday from conclusion of school Thursday until commencement of school the following day and in the event of a non school day 9.00 am Friday;
(c)	the first half of the April, July and October school holiday periods in each year and for the purpose of these Orders the said school holiday periods shall be defined as the periods commencing at the conclusion of the last day of each school term until the commencement of school on the first day of the following term;
(d)	unless otherwise agreed, each alternate week during the Christmas/Summer school holiday period commencing with the first week of each such period and in the event of there being an odd number of weeks the last week shall be shared equally between the parties;
(e)	for the purpose of these orders the Christmas/Summer school holiday period shall be defined as the period commencing at the conclusion of the last day of each school year and concluding at the commencement of the first day of the following school year;
(f)	from 5.00 pm the evening preceding Mother's Day until 5.00 pm Mother's Day in each year;
(g)	in the event that the Easter break falls outside of the April school holiday period then:

(a) from conclusion of school Maundy Thursday until 5.00 pm Easter Saturday in each alternate year commencing 2010; and

[2009] FCWA 134

(b) from 5.00 pm Easter Saturday until the commencement of school the Tuesday immediately following the Easter period in each intervening year commencing 2011;

(h) from 5.00 pm Christmas Eve until 2.00 pm Christmas Day in 2009 and each alternate year thereafter;

(i) from 2.00 pm Christmas Day until 5.00 pm Boxing Day in 2010 and each intervening year thereafter;

(j}	in the event of the children's birthdays falling on a non school day, for a period of 4 hours from 2.00 pm until 6.00 pm or such other period that may be agreed;
(k)	in the event of the children's birthdays falling on a school day then from the conclusion of school on the day preceding the birthday until the commencement of school on their respective birthdays in alternate years and from the conclusion of school until 7.00 pm on the children's birthdays during each intervening year;
(l)	from conclusion of school until commencement of school on the following day on the occasion of the mother's birthday in each year in the event that it falls on a school day and in the event of a non school day from 5.00 pm on her birthday until 9.00 am the following day;
(m)	such further or alternate periods as may be agreed in writing between the parties from time to time.

4. The children shall live with the applicant father at all other times.

5. The time that the children spend with the mother pursuant to paragraph 3 above shall be suspended during the following periods:

(a)	from 5.00 pm the evening preceding Father's Day until 5.00 pm Father's Day in each year;
(b)	from 2.00 pm Christmas Day until 5.00 pm Boxing Day in each alternate year commencing 2009;
(c)	from 5.00 pm Christmas Eve until 2.00 pm Christmas Day in each intervening year commencing 2010;
(d)	from 5.00 pm Easter Saturday until the commencement of school Easter Tuesday in each alternate year commencing 2010;
(e)	from conclusion of school Maundy Thursday until 5.00 pm Easter Saturday in each intervening year commencing 2011;
(f)	in the event that the children's birthdays fall on a non school day for the period 2.00 pm until 6.00 pm;
(g)	from 5.00 pm on the occasion of the father’s birthday until 9.00 am the following day;
(h)	such further or alternative periods as may be agreed in writing between the parties from time to time.

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6. That both parties inform the other in the event that either or both children are seriously ill or injured during any period that they may be in their care and provide details to the other party of any treating medical practitioner or hospital to which either or both children have been admitted.

7. That both parties provide a written authority to any school that the children may attend in the future authorising the release of any information that maybe reasonably requested by the other parent in relation to any aspect of the children's education.

8. For the purpose of handovers of the children which cannot otherwise be conducted through the children's respective schools and until such time as the respondent mother secures a motor vehicle for her use, the father be responsible for delivering the children to the mother's home at the commencement of each period that the children are due to live with her pursuant to these orders and otherwise collect the children from the mother's home at the commencement of each period that the children are due to live with him.

9. Upon the mother securing a motor vehicle for her use and in circumstances where handovers cannot be effected through the children's schools, the mother shall collect the children from the father's residence at the commencement of each period that the children are due to live with her and the father shall collect the children from the mother's residence at the commencement of any periods that the children are due to live with him.

10. That the applications be otherwise dismissed.

I certify that the preceding [143] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate