Haggart and Haggart
[2018] FCCA 62
•15 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAGGART & HAGGART | [2018] FCCA 62 |
| Catchwords: FAMILY LAW – Parenting – four year old and 21 month old – whether there should be equal time or substantial and significant time with each parent – speed at which time for 21 month old should increase – whether the mother has borderline personality disorder – whether the father has assaulted the mother – high conflict and competitive parental relationship – whether the court is in a position to determine schooling issue. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Other: Clinical Practice Guideline for the Management of Borderline Personality Disorder, National Health and Medical Research Council, 2012 |
| Applicant: | MR HAGGART |
| Respondent: | MS HAGGART |
| File Number: | MLC 452 of 2016 |
| Judgment of: | Judge Riley |
| Hearing dates: | 11, 12 and 13 September 2017 and 3 and 4 October 2017 |
| Date of last submission: | 13 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 15 January 2018 |
REPRESENTATION
| Counsel for the applicant: | Mr O’Shannessy |
| Solicitors for the applicant: | CE Family Lawyers |
| Counsel for the respondent: | Ms Lane |
| Solicitors for the respondent: | Marshalls + Dent |
ORDERS
The parents have equal shared parental responsibility for X born on (omitted) 2013 (“X”) and Y born on (omitted) 2016 (“Y”).
X and Y live with their mother.
X spend time with his father:
(a)until X commences school in 2019, in a two-week cycle:
(i)in week one, from 4pm on Friday until 9am on Monday or the commencement of kindergarten on Monday;
(ii)in week two, from 9am on Wednesday until 9am on Friday or the commencement of kindergarten on Friday;
(b)from the commencement of school in 2019, during gazetted Victorian school terms in a two week cycle:
(i)in week one, from the conclusion of school on Thursday (or 4pm if not a school day) until the commencement of school on Monday (or 10am if not a school day); and
(ii)in week two, from the conclusion of school on Wednesday (or 4pm if not a school day) until the commencement of school on Thursday (or 10am if not a school day);
(c)during gazetted Victorian school term holidays, for the first week in 2018 and each alternate year thereafter and the second week in 2019 and each alternate year thereafter, with the first week to begin at 10am on the first Sunday of the school holidays and end at 10am on the second Sunday of the school holidays, and the second week to begin at 10am on the second Sunday of the school holidays and end at 10am on the third Sunday of the school holidays;
(d)from 4pm on Christmas Eve 2018 until 4pm on Christmas Day 2018 and each alternate year thereafter;
(e)from 4pm on Christmas Day 2019 until 4pm on 26 December 2019 and each alternate year thereafter;
(f)during the long summer vacation commencing in 2018/2019, from 4pm on 26 December until 4pm on 2 January, from 4pm on 9 January until 4pm on 16 January and from 4pm on 23 January until 30 January or the day before school resumes, whichever occurs earlier; and
(g)as otherwise agreed between the parents.
Y spend time with her father to coincide with X’s time:
(a)starting immediately:
(i)from 10am to 6pm each alternate Saturday and Sunday; and
(ii)from 4pm until 7pm each Thursday;
(b)from 7 October 2018:
(i)from 10am each alternate Saturday until 6pm the following Sunday; and
(ii)from 4pm to 7pm each Wednesday; and
(c)from 7 April 2019:
(i)from 4pm each alternate Friday until 6pm the following Sunday; and
(ii)from 4pm to 7pm each Wednesday;
(d)from 7 October 2019:
(i)from 4pm to 7pm on alternate Wednesdays;
(ii)from 4pm each alternate Friday until 4pm the following Sunday; and
(iii)from 4pm each alternate Wednesday to 4pm the following Thursday;
(e)from 7 April 2020, five nights in a fortnight at the same times as X;
(f)during school holidays:
(i)from 7 October 2018, for three nights, commencing when X starts spending time with his father and ending 72 hours later;
(ii)from 7 April 2019, for four nights, commencing when X starts spending time with his father and ending 96 hours later;
(iii)from 7 April 2020, for five nights, commencing when X starts spending time with his father and ending 120 hours later; and
(iv)from 7 April 2021, for seven nights, commencing when X starts spending time with his father and ending when X’s time with his father ends; or
(g)as otherwise agreed between the parents.
X and Y’s time with their father pursuant to orders 3(a) and (b) and 4(a) to (e) be suspended during gazetted Victorian school holidays.
On X and Y’s birthdays, if they are not otherwise scheduled pursuant to these orders to spend any time with both parents:
(a)if it is a kindergarten/school attendance day for one or both of the children, both X and Y additionally spend time with the parent they are not scheduled to spend time with on that day pursuant to these orders, from the conclusion of kindergarten/school (whichever is the later) until 5.30pm; and
(b)if it is not a kindergarten/school attendance day for one or both of the children, both X and Y additionally spend time with the parent they are not scheduled to spend time with on that day pursuant to these orders, from 10.00am to 2.00pm; or
(c)as otherwise agreed between the parents.
On the mother’s birthday, if X and Y are not already scheduled to spend time that day with their mother pursuant to these orders, then X and Y additionally spend time with their mother:
(a)if it is a kindergarten/school attendance day for one or both of the children, from the conclusion of kindergarten/school (whichever is the later) until 6.30pm; and
(b)if it is not a kindergarten/school attendance day for either of X and Y, from 10.00am to 2.00pm; or
(c)as otherwise agreed between the parents.
On the father’s birthday, if X and Y are not already scheduled to spend time that day with their father pursuant to these orders, then X and Y additionally spend time with their father:
(a)if it is a kindergarten/school attendance day for one or both of the children, from the conclusion of kindergarten/school (whichever is the later) until 6.30pm; and
(b)if it is not a kindergarten/school attendance day for either of the children, from 10.00am to 2.00pm; or
(c)as otherwise agreed between the parents.
If changeover is to occur when X and Y are starting or finishing school or kindergarten, then changeover be effected at school or kindergarten, or as is otherwise agreed by the parents.
If changeover is not to occur at those times, then changeover be effected by:
(a)the father collecting X and/or Y from the mother’s home at the commencement of their time with him; and
(b)the mother collecting X and/or Y from the father’s home at the conclusion of their time with him;
save that:
(c)if Y is spending time with her father while X is with his mother, the father collect Y from, and return her to, the mother’s home; and
(d)if Y is returning to her mother and X is staying with his father, the mother collect Y from the father’s home; or
(e)as otherwise agreed by the parents.
X and Y communicate with the parent they are not staying with by telephone, Skype or FaceTime each Saturday between 5.30pm and 6pm with the parent they are not staying with to place the call and the parent they are staying with to facilitate the call provided that X and Y are not to be required to use Skype or FaceTime unless they can manage it without the parent they are staying with being visible to the other parent.
In the event that either parent wishes to take X and Y overseas during their time with that parent, or at such other time as agreed between the parents in writing, the travelling parent provide to the other 60 days’ notice of their intended travel and such notice to include:
(a)a copy of the itinerary;
(b)the particulars of the flights including airline carrier and departure and arrival times;
(c)a copy of the children’s return airline tickets;
(d)particulars of the children’s accommodation; and
(e)a contact number on which the children can be reached.
In the event the father gives notice of his intention to travel overseas with the children, the mother provide the father with the children’s passports 48 hours prior to travel and the father return the children’s passports to the mother within 48 hours of his return.
Each parent be permitted to take X and Y interstate during the relevant parent’s periods of care of the children with the travelling parent to provide the other parent with at least seven days written notice of the travel.
ORDERS BY CONSENT
If X and Y are not already scheduled to spend Mother’s Day with their mother pursuant to these orders, then X and Y spend time with their mother from 10am until 6pm on Mother’s Day.
If X and Y are not already scheduled to spend Father’s Day with their father pursuant to these orders, then X and Y spend time with their father from 10am until 6pm on Father’s Day.
In the event that the parents agree to swap time or weekends, the swap be for an equivalent period of time, unless otherwise agreed between the parents in writing.
Within 60 days, the mother provide to the father a written recommendation from Dr N (at her expense) as to the vaccinations X and Y should have and the dates on which they should have them.
The mother authorise the father to discuss any recommendation with Dr N.
The mother arrange for the vaccinations and provide the father with seven days’ notice of the vaccinations to enable him to attend, and cause the vaccinations to occur within 14 days of the recommended date, or, in the event of illness of X or Y, such further period as Dr R recommends in writing to both parents.
Dr R administer the vaccines recommended by Dr N to X and Y or as directed by Dr R.
Further, in any event, the parents keep each other informed as to the vaccination of X and Y.
The cost of the vaccines and the administration of the vaccines be met by the parents in equal shares.
Within seven days of a request by one parent, the other parent do all acts and things and sign all necessary documents to allow the requesting party to obtain or renew X’s and Y's Australian, (nationality omitted) and (nationality omitted) passports.
The parents do all acts and things and sign all documents as may be necessary to authorise Lander & Rogers to release X’s passports to his mother.
Both parents continue to do all things necessary to attend upon Ms L or other agreed child specialist as Ms L or the other agreed specialist recommends for the purposes of confidential family therapy and as a means to resolve disagreements, the costs of such family therapy to be shared equally between the parents.
Neither parent make any decisions in relation to any medical treatment, including (omitted) treatment, or consent to any medical treatment, including (omitted) treatment, without the prior written agreement of the other parent.
Each parent keep the other informed of the names and contact details of any doctor, medical specialist or allied health professional who X and Y consult and each parent be entitled to receive information (including online access where available from such health care providers) relating to X and Y or either of them.
Each parent:
(a)be at liberty to attend all school and extracurricular events to which parents are ordinarily entitled to or are invited to attend;
(b)be at liberty to receive all correspondence, notices, newsletters, reports, application forms, school photographs and any other material relating to X and Y;
(c)notify the other as soon as reasonably practical of any injury, illness, or medical condition requiring treatment suffered by X or Y whilst they are in that parent’s care and provide the details of any treating medical practitioner or health professional or medical clinic or hospital to the other parent; and
(d)keep the other informed of their residential address and telephone number and advise the other parent of any change of address within 48 hours of such change.
Where information regarding X and Y’s schooling, kindergarten or preparatory school is provided online, both parents do all things necessary to ensure that each parent has access to such website or online information as provided by that teaching institution.
Each parent use their best endeavours to keep the other parent informed in a timely fashion of forthcoming school, kindergarten and extracurricular activities and events when the first parent becomes aware of the event.
Either parent be at liberty to provide a copy of this order to X and Y’s:
(a)preparatory school;
(b)kindergarten;
(c)school;
(d)treating medical practitioner (including their dentist); and
(e)any other professional working with X and Y.
The parents utilise email or a parenting app to communicate about the care, welfare and development of X and Y in a manner that is respectful of X and Y and the other parent.
Each parent have liberty to apply in relation to the administration of the vaccinations to X and Y.
ORDERS BY THE COURT
If the parents have not agreed by 31 May 2018 on the school X is to attend in 2019, then each parent have liberty to apply by 14 June 2018 on that issue.
Both parents be required to sign all documents in relation to registration, enrolment or pre-enrolment of X and Y or either of them at any kindergarten, preparatory school or school.
X’s and Y’s passports be held by their mother.
Until 15 January 2023, MR HAGGART be restrained from removing X and Y or either of them from the Commonwealth of Australia.
Until 15 January 2023, MS HAGGART, also known as MS HAGGART, be restrained from removing X and Y or either of them from the Commonwealth of Australia.
Until 15 January 2023, X be restrained from leaving the Commonwealth of Australia.
Until 15 January 2023, Y be restrained from leaving the Commonwealth of Australia.
REQUEST BY THE COURT
The Marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories take all necessary steps to give effect to these orders, including all things necessary to include X and Y’s names on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain X and Y’s names on the airport watch list until 15 January 2023.
ORDER BY CONSENT
Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
NOTATIONS
(A)Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
(C)If either parent seeks that X or Y’s name remain on the airport watch list after 15 January 2023, then before that date, that parent should file a further application to that effect supported by affidavit.
IT IS NOTED that publication of this judgment under the pseudonym Haggart & Haggart is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 452 of 2016
| MR HAGGART |
Applicant
And
| MS HAGGART |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in respect of X born on (omitted) 2013 (“X”) and Y, born on (omitted) 2016 (“Y”). X is now four years old and Y is about 21 months old.
The father is 47 years old and, at the time of the proceedings, was unemployed. He is trained as a (occupation omitted) and previously worked as a (occupation omitted). The mother is 43 years old and works as a (occupation omitted) part time.
The father was born in (country omitted) and his family of origin remains there. The mother was born in Australia and her family of origin remains here.
Mr V has prepared two family reports in this matter. Sadly, Mr V describes the parents as being in high conflict and in a competitive relationship.
Vaccinations
A very significant issue in these proceedings was whether X and Y should have the usual childhood vaccinations. The father’s position was that they should and the mother’s position was that they should not. However, on the last day of the trial, the parents agreed to orders as follows on the question of vaccinations:
a)within 60 days, the mother provide to the father a written recommendation from Dr N (at her expense) as to the vaccinations X and Y should have and the dates on which they should have them;
b)the mother authorise the father to discuss any recommendation with Dr N;
c)the mother arrange for the vaccinations and provide the father with seven days’ notice of the vaccinations to enable him to attend, and cause the vaccinations to occur within 14 days of the recommended date, or, in the event of illness of X or Y, such further period as Dr R recommends in writing to both parents;
d)Dr R administer the vaccines as recommended by Dr N to X and Y or as directed by Dr R;
e)further, in any event, the parents keep each other informed as to the vaccination of X and Y;
f)the cost of the vaccines and the administration of the vaccines be met by the parents in equal shares; and
g)each party have liberty to apply in relation to the administration of the vaccinations of X and Y.
As the parents have agreed on this issue, I take the matter no further at this stage. However, if required, the court will revisit the issue pursuant to the liberty to apply.
(omitted) treatment of X and Y
During closing submissions, it emerged that the mother wished to be able to perform (omitted) treatments on X and Y if she thought fit. The father was opposed to that. The court raised an issue about whether it is ethical for a (omitted) person to treat a member of his or her own family. The mother said through her counsel that there was no restriction on (omitted) treating members of their own family, though she acknowledged that medical doctors have such restrictions.
The court provided to the parties details of the ethical guidelines for chiropractors, which are contained in the Code of Conduct for Chiropractors dated March 2014 published by the Chiropractic Board of Australia. Clause 3.15 of the Code provides as follows:
3.15Personal relationships
Good practice includes chiropractors recognising the potential conflicts, risks and complexities of providing care to those with whom they have a close relationship, e.g. close friends, work colleagues and family members. In some cases, this can be inappropriate because of a lack of objectivity, possible discontinuity of care and risks to the practitioner or patient. When a practitioner chooses to provide care to those in a close relationship, good practice requires that:
a)the conflict of interest is acknowledged and declared
b)adequate records are kept
c)confidentiality is maintained
d)adequate assessment occurs
e)appropriate consent is obtained for the circumstances which is acknowledged by both the chiropractor and patient
f)the personal relationship does not in any way impair clinical judgment, and
g)an option to discontinue care is maintained at all times
On 4 October 2017, the court ordered the mother to file and serve within seven days written submissions on whether or not she ought to be restrained from giving (omitted) services to X and Y or either of them in view of that clause. The father was ordered to file and serve submissions in reply within a further seven days.
On Wednesday 11 October 2017, the court received correspondence from the mother’s solicitor as follows:
…
Our client has considered her position. Our client no longer proposes to provide (omitted) services to the children unless with the Father’s consent.
On this basis our client consents to paragraph 13 of the Father’s Minute of Proposed Orders with the deletion of the words struck through below as they are no longer relevant. Paragraph 13 provides as follows:
“Save as provided with respect to the vaccination of the children pursuant to this Order, neither parent makes any decisions in relation to any medical treatment or consent to any medical treatment without the prior written agreement of the other parent.”Our client understands that this paragraph includes (omitted) services.
As a result of this, paragraph 24(c) in our client’s Minute of Proposed Orders can be deleted.
…
For clarity, on Thursday 12 October 2017, chambers wrote to the parties asking whether or not they consented to the following order:
Neither parent make any decision in relation to any medical treatment, including (omitted) treatment, or consent to any medical treatment, including (omitted) treatment, without the prior written agreement of the other parent.
On 12 October 2017, the mother consented in writing to that proposed order. On 13 October 2017, the father consented in writing to that proposed order. As the parents have agreed on this issue, I take the matter no further.
Other consent orders
The parents also, after a considerable amount of negotiation, consented to the following additional orders:
(1)Except in relation to primary schooling, the parents have equal shared parental responsibility for all decisions relating to the long-term care, welfare and development of X born on (omitted) 2013 (“X”) and Y born on (omitted) 2016 (“Y”).
(2)X and Y live with their mother.
(3)For the purposes of celebrating Mother’s Day, if X and Y are not already scheduled to spend that day with their mother pursuant to these orders, then X and Y spend time with their mother from 10am on Mother’s Day until 6pm on Mother’s Day.
(4)For the purposes of celebrating Father’s Day, if X and Y are not already scheduled to spend that day with their father pursuant to these orders, then X and Y spend time with their father from 10am on Father’s Day until 6pm on Father’s Day.
(5)In the event that the parents agree to swap time or weekends, the swap be for an equivalent period of time, unless otherwise agreed between the parents in writing.
(6)The parents do all acts and things and sign all documents as may be necessary to authorise Lander & Rogers to release X’s passports to his mother.
(7)Within seven days of a request by one party, the other party do all acts and things and sign all necessary documents to allow the requesting party to obtain or renew X’s and Y's Australian, (nationality omitted) and (nationality omitted) passports.
(8)Both parents continue to do all things necessary to attend upon Ms L or other agreed child specialist as Ms L or the other agreed specialist recommends for the purposes of confidential family therapy and as a means to resolve disagreements, the costs of such family therapy to be shared equally between the parents.
(9)Each parent keep the other informed of the names and contact details of any doctor, medical specialist or allied health professional who X and Y consult and each parent be entitled to receive information (including online access where available from such health care providers) relating to X and Y or either of them.
(10)Each parent be at liberty to:
(a)attend all school and extracurricular events to which parents are ordinarily entitled to or are invited to attend; and
(b)receive all correspondence, notices, newsletters, reports, application forms, school photographs and any other material relating to X and Y;
(11) Each parent:
(a)notify the other as soon as reasonably practical of any injury, illness, or medical condition requiring treatment suffered by X or Y whilst they are in that parent’s care and provide the details of any treating medical practitioner or health professional or medical clinic or hospital to the other parent; and
(b)keep the other informed of their residential address and telephone number and advise the other party of any change of address within 48 hours of such change.
(12)Where information regarding X and Y’s schooling, kindergarten or preparatory school is provided online, both parents do all things necessary to ensure that each parent has access to such website or online information as provided by that teaching institution.
(13)Each parent use their best endeavours to keep the other parent informed in a timely fashion of forthcoming school, kindergarten and extracurricular activities and events when the first parent becomes aware of the event.
(14)Either parent be at liberty to provide a copy of this order (with any order regarding psychiatric treatment of the mother to be redacted) to X and Y’s:
(a)preparatory school;
(b)kindergarten;
(c)school;
(d)treating medical practitioner (including their dentist); and
(e)any other professional working with X and Y.
(15)The parents utilise email or a parenting app to communicate about the care, welfare and development of X and Y in a manner that is respectful of X and Y and the other parent.
I consider that the proposed consent orders are in the best interests of X and Y, and orders will be made accordingly.
Remaining issues
There were a number of issues that remained outstanding at the end of the trial. The mother and the father each submitted lengthy and meticulously detailed proposals in relation to X and Y.
Broadly, the mother sought orders for X and Y to live with her and spend time with their father increasing gradually to five nights a fortnight. The father sought orders for X and Y, after a graduated increase in time, to live with each parent in a week-about arrangement.
More particularly, the issues that remained in dispute were:
a)whether the mother has borderline personality disorder, as the father argued and the mother denied;
b)whether the mother should have sole parental responsibility in relation to the choice of primary school for each of X and Y;
c)the time that X and Y should spend with their father, including whether the time should gradually increase to equal time;
d)the time that X and Y should spend with each parent on special occasions, other than Mother’s Day and Father’s Day, which were agreed;
e)the arrangements for changeover;
f)the choice of school, if the mother were not awarded sole parental responsibility on that question;
g)the arrangements for overseas travel and whether there should be an airport watch list order; and
h)whether the father should be in substantial attendance when X and Y are with him.
A history of the relationship
The parents met in the (country omitted) in (omitted) 2010 on an internet dating site. They began living together in (omitted) 2011.
They married on (omitted) 2012 in (country omitted). They immediately commenced IVF in (country omitted). The mother became pregnant on the second attempt in (omitted) 2013.
In (omitted) 2013, while the mother was pregnant with X, the mother and father moved from the (country omitted) to (country omitted). The reason for the move was that the father had a two year secondment.
X was born in (country omitted) on (omitted) 2013. In (omitted) 2014, the family moved to (omitted) for the father’s employment. The father was earning about (omitted)400,000 per year at that time. The father gave the mother (omitted)2,000 per month, and later, (omitted)1,500 per month, to pay for all food and living expenses. The father did not permit the mother to have a car. The mother felt isolated and unhappy. The mother qualified for registration as a (occupation omitted) in (country omitted) in (omitted) 2014.
In (omitted) 2014, the mother had a further round of IVF treatment which resulted in a pregnancy. In (omitted) 2015, the parents agreed that they would relocate back to (country omitted) after the father’s two year secondment ended in (omitted) 2015. Sadly, the pregnancy ended in a miscarriage on (omitted) 2015.
On (omitted) 2015, the mother and X had a planned trip to Australia to visit the maternal grandmother. After arriving here, the mother told the father that she did not wish to return to (country omitted) or (country omitted) as she needed family support. The father arrived in Melbourne, as previously planned, on (omitted) 2015. The parents began relationship counselling. They agreed to return to (country omitted) together. Before doing so, the father signed a statement at the mother’s request that she could return to Australia with X in the future if she wished.
The family returned to (country omitted). However, on (omitted) 2015, while the father was on a trip to (country omitted), the mother returned to Melbourne with X on one-way tickets. The mother told the father upon her arrival in Melbourne, on (omitted) 2015, that she had moved to Melbourne. At this time, the father was in the (country omitted) preparing to fly back to (country omitted). The father followed the family to Melbourne, arriving on (omitted) 2015.
The parents resumed relationship counselling. They returned to (country omitted) as a family on (omitted) 2015. The father accepted a redundancy package at the end of (omitted) 2015. They went to (country omitted) in (omitted) 2015 where the mother had another round of IVF. The treatment was successful and the mother fell pregnant with Y. The parents and X had a holiday in the (country omitted), and (country omitted) for two months.
The family moved to Melbourne on (omitted) 2015. They initially stayed with the maternal grandmother in (omitted) and then moved into a rented house in (omitted).
On 29 November 2015, while the father was out playing (hobby omitted), the mother left the former family home in (omitted), taking X with her, and returned to the maternal grandmother’s home. That was the parents’ final separation.
On 29 January 2016, the mother obtained an interim intervention order against the father. The mother alleged that the father struck her on her chest and neck.
Y was born on (omitted) 2016. On 19 April 2016, the mother obtained a final intervention order against the father for a period of 12 months, which the father consented to without admissions. The mother applied to extend the intervention order on 7 April 2017. The mother’s application to extend the intervention order was listed for hearing on 27 October 2017, after the trial in the present proceedings concluded.
A history of the proceedings
The proceedings were commenced by the father’s initiating application, which was filed on 20 January 2016, amended on 20 June 2016 and further amended on 14 August 2017. The mother filed her initial response on 31 March 2016, and responses to the amended applications on 19 August 2016 and 28 August 2017.
The matter first came on before this court in the duty list on 31 March 2016. On that day, interim orders were made:
a)by consent for:
i)the mother to surrender all of X’s passports either to her own solicitors or the husband’s solicitors;
ii)equal shared parental responsibility;
iii)a private family report to be prepared by Mr V at their joint expense; and
iv)the parents to attend upon Dr T for the preparation of a psychiatric report, at their joint expense; and
b)by the court for:
i)X’s name to be placed on the airport watch list;
ii)X to live with his mother; and
iii)X to spend time with his father each Wednesday and Saturday from 9am to 5pm, and at other times as agreed between the parents.
The matter next came before the court on 23 August 2016. On that occasion, the interim orders (for which written reasons were given) broadly provided for:
a)by consent:
i)equal shared parental responsibility;
ii)X and Y to live with their mother;
iii)neither parent to make any decision in relation to any medical treatment or consent to any medical treatment (including but not limited to vaccinations, antibiotics and other medicines) without the prior written agreement of the other parent; and
b)by the court:
i)X to spend time with his father:
(A)from 9am on Saturday until 6pm on Sunday, commencing on 27 August 2016 and each alternate weekend thereafter until 6pm on Sunday 13 November 2016;
(B)from 4pm on Friday until 6pm on Sunday, commencing on 25 November 2016 and each alternate weekend thereafter;
(C)from 9am on Wednesday 7 September 2016 to 9am on Thursday 8 September 2016 and each alternate week thereafter until Tuesday 22 August 2017; and
(D)from 9am on Wednesday 23 August 2017 until 9am on Friday 25 August 2017 and each alternate week thereafter.
ii)Y to spend time with her father:
(A)from 9am to 10am on Saturday 27 August 2016 and each alternate Saturday thereafter until Saturday 12 November 2016;
(B)from 4pm to 5pm on Friday 25 November 2016 and each alternate Friday thereafter;
(C)from 9am until 10am on Thursday 8 September 2016 and each alternate Thursday thereafter until Tuesday 22 August 2017; and
(D)from 9am until 10am on Friday 25 August 2017, and each alternate Friday thereafter;
iii)X to spend further time with his father for two hours at times agreed between the parents on each of X’s birthday, the father’s birthday and Father’s Day each year; and
iv)the parents to undertake confidential family therapy with Ms L at their equal shared expense.
In addition, the court ordered by consent:
Notwithstanding any anything to the contrary, any time that X and Y or either of them spend with their father pursuant to these orders be suspended on Sunday 3 March 2017 to enable them to attend their auntie’s wedding with their mother, subject to make up time being provided by the mother to the father within two weeks.
The matter returned to court on 26 August 2016, when orders were made as follows:
a)by the court, for Father’s Day in 2016 and 2017,
i)X spend from 12pm to 2pm with his father; and
ii)Y spend from 1pm to 2pm with her father;
b)by consent at Christmas in 2016:
i)X spend from 4pm on 25 December until 4pm on 26 December with his father; and
ii)Y spend with her father:
A.from 4pm to 5pm on 25 December; and
B.from 4pm to 5pm on 26 December.
Documents relied upon
At the trial:
a)the father relied upon:
i)his further amended initiating application filed on 14 August 2017;
ii)his affidavit affirmed and filed on 14 August 2017;
iii)the affidavit of Dr T sworn or affirmed and filed on 24 August 2017;
iv)the affidavit of Mr V sworn on 22 August 2017 and filed on 28 August 2017;
v)the notice of risk filed on 20 January 2016; and
vi)the affidavit of Dr N affirmed and filed in court (with leave) on 11 September 2017; and
b)the mother relied upon:
i)her response to the father’s further amended initiating application filed on 28 August 2017;
ii)her affidavit affirmed and filed on 28 August 2017;
iii)the affidavit of Dr S affirmed and filed on 29 August 2017;
iv)the affidavit of Dr R sworn on 5 September 2017 and filed on 6 September 2017;
v)the affidavit of Dr T sworn or affirmed and filed on 24 August 2017; and
vi)the affidavit of Mr V sworn on 22 August 2017 and filed on 28 August 2017.
The following people were cross-examined:
a)the father;
b)the mother;
c)Mr V;
d)Dr R; and
e)Dr T.
Dr S and Dr N were not cross-examined as their evidence concerned the vaccination issue on which the parents eventually agreed.
Psychiatric assessments by Dr T
Dr T prepared psychiatric assessments dated 30 June 2016 of the father and the mother. Dr T is a consultant psychiatrist in private practice. Since 1986, he has done assessments for personal injury and family law purposes.
Dr T considered that the father did not have a psychiatric condition. Dr T considered that the mother had borderline personality disorder and an adjustment disorder with anxious mood.
Dr T noted that:
[The mother] told me she was very anxious about the assessment and had not slept well the night before [Y was two months old at the time], adding that she was feeling very frightened that she would lose the children, and suspected that [the father] was going to take them back to the (country omitted), and concerned that he was to make a 60/40 contact application.
…
Her perception of [the father] progressively changed when she found him inattentive to her needs and at times controlling of her. She persisted with the relationship in part in order to have Y, by which point she had completely lost whatever love and respect she had for [the father] who she came to experience as lazy, abusive and controlling. ....
[The father’s] initiating of Court proceedings has resulted in a deep sense of fear that he plans to take the children from her. …
[The mother] now experiences [the father] as threatening and intimidatory, perceives him as abusing X, and incapable of parenting him, a repeat of her experience of her father and his lack of parenting capacity of her.
…
Dr T concluded that:
1.[The father] and [the mother] each have their vulnerabilities. ...
…
3. …[The mother’s] strong need for control makes it very difficult for her to ‘let go’ and allow X and his father to develop their relationship ....
4.[The mother’s] description of [the father] as lazy, controlling and abusive raises questions as to possibility that he for his own reasons may have been more insecure and controlling of her than he acknowledges. At interview [the father] presented very differently to the man described by [the mother], whilst his description of [the mother] matched my experience of her. …
Psychiatric assessments by Dr R
Following Dr T’s psychiatric assessment of the parents, the mother consulted with Dr R, on 11 July 2017 and 25 July 2017. Dr R is:
a)a consultant psychiatrist;
b)the Executive Clinical Director at Spectrum, Personality Disorder Service for Victoria;
c)an Adjunct Clinical Associate Professor at Monash University; and
d)Deputy Chair of the Australian Borderline Personality Disorder Foundation.
Dr R swore an affidavit on 5 September 2017 in which he said that he had undertaken a clinical psychiatric assessment of the mother and did not believe that she qualified for a diagnosis of borderline personality disorder under the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders (5th ed)).
Dr R annexed to his affidavit a copy of a letter he had sent to the mother’s general practitioner, Dr R. In that letter, Dr R said that:
I have explained to [the mother] that I have assessed her for clinical purposes only and that I would write a clinical report back to you and as such this is not a medico-legal report. …
[The mother] was a 42 year old single woman. She had two young children. She was a (occupation omitted) by profession. She presented requesting for a clinical assessment to check if she had a BPD. She reported that she was previously diagnosed with an anxiety disorder and ‘core BPD’ by another psychiatrist. I did not have access to her previous psychiatric assessment. She reported that the previous psychiatric assessment occurred in the context of emotionally difficult divorce proceedings and when she was in the post natal period-11 weeks after childbirth.
I was unable to elicit any clinically significant features suggestive of a borderline personality disorder (BPD). She reported no history suggestive of any clinically significant and persistent patterns of emotion instability, fear of abandonment emotional dynamics, interpersonal dysregulation, unstable self-image, self-loathing, impulsivity, self-harm and suicidal behaviours, chronic feelings of emptiness or anger outbursts. She also did not report chronic suicidal ideations or history of suicide attempts. She reported no significant childhood trauma history. She specifically did not report experiencing any emotional trauma after her parents separated when she was 7 years old. She reported no genetic background for mental illnesses and specifically no genetic background for BPD.
She did not abuse substances. She had no psychotic symptoms. She did not provide history suggestive of mood disorders, eating disorders, clinically significant anxiety disorders etc. She had no psychiatric admissions. She has never been treated by a psychiatrist in the past. She has sought some psychological counselling to cope with the difficult marital breakup.
At 17 years of age she had fleeting suicidal thoughts while she was on prednisolone for Crohn’s disease. These suicidal thoughts were not characteristic of BPD. She reported mild emotional symptoms for about two days- premenstrual. However, this was not clinically significant and as such she did not qualify for a Late Luteal Phase Dysphoric Disorder (LLPDD).
She reported she separated from her ex-husband Mr Haggart, 18 months ago and was divorced for a year. She met him in 2010, online, while she was in (country omitted) and married him 2012. However she reported that the relationship was emotionally abusive. Her current relationship with her ex-husband remains very fraught.
On MSE, she was well presented and cooperative with interview. Rapport could be easily established. Her speech was normal and no thought disorders were noted. She had no suicidal or self-harm urges/ideations. She had no self-loathing. Her affect was euthymic and mood was within normal limits. She had no mood instability. She was not depressed or anxious. [She] had no thought or perceptual disorders. She had no chronic suicidal ideations. She also did not have chronic hopelessness. She had no fear of abandonment emotional dynamics. Her cognitive functions were grossly intact.
I also administered two psychometric scales on her to clarify possible BPD psychopathology:
·Zanarini rating scale for BPD: (score 0/10)-NOT indicative of BPD
·Borderline Personality Questionnaire (BPQ): score 2/80- NOT indicative of BPD
Opinion and suggestions for further care:
·Diagnosis: I do not believe she qualifies for a diagnosis of Borderline Personality Disorder under DSM-5.
·I have no specific suggestions for a psychiatric treatment as she reported no clinically significant psychiatric symptoms.
·I hope she manages to resolve her current issues with her ex-husband and to assist with this she may seek counselling from a psychologist.
…
When he wrote that letter, Dr R had not read Dr T’s report. However, it was later provided to him. Dr R then wrote a letter dated 24 September 2017 (Exhibit 15) addressed to the mother’s solicitor. It said:
…
I have prepared this medical report, as requested by you, after reviewing a copy of the psychiatric assessment report of Dr T dated 30th June 2016 regarding [the father] and [the mother]. I have prepared this report in my capacity as a psychiatrist who had previously assessed [the mother].
This report has been compiled mainly based on the information contained within the written psychiatric assessment report of Dr T and my psychiatric evaluations of [the mother]
Opinion
1.Diagnostic assessment for BPD, according to National Health and Medical Research Council (NHMRC) Clinical Practice Guideline for the Management of Borderline (reference: Page 1 of National Health and Medical Research Council. Clinical Practice Guideline for the Management of Borderline Personality Disorder. Melbourne: National Health and Medical Research Council; 2012) states the following as to when to suspect a person may have BPD, I quote, “Signs that someone has BPD include:
·making frantic efforts to avoid being abandoned by other people (even if they are only imagining that other people are abandoning them),
·repeatedly having intense and unstable relationships with other people (such as intensely disliking someone that they previously idealised)
·being very unsure of who they are and what to think about themselves,
·acting impulsively in ways that could be very risky (such as spending money, risky sexual behaviour, substance abuse, reckless driving or binge eating),
·repeatedly harming themselves or threatening to commit suicide,
·experiencing intense emotional ‘lows’, irritability or anxiety for a few hours or days at a time,
·constantly feeling ‘empty’,
·experiencing unusually intense anger and being unable to control it, and
·sometimes feeling paranoid or experiencing strange feelings of being detached from their own emotional or physical situation”.
2.The Diagnostic and Statistical Manual of Mental Disorders (5th Edition) outlines the following diagnostic criteria for Borderline personality disorder (BPD)
A pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:
i.Frantic efforts to avoid real or imagined abandonment.
ii.A pattern of unstable interpersonal relationships characterized by alternating between extremes of idealization and devaluation.
iii.Identity disturbance: markedly and persistently unstable self-image or sense of self.
iv.Impulsivity in at least two areas that are potentially self-damaging (e.g., spending, sex, substance abuse, reckless driving, binge eating).
v.Recurrent suicidal behaviour, gestures, or threats, or self-mutilating behaviour.
vi.Affective instability due to a marked reactivity of mood (e.g., intense episodic dysphoria, irritability, or anxiety usually lasting a few hours and only rarely more than a few days).
vii.Chronic feelings of emptiness.
viii.Inappropriate, intense anger or difficulty controlling anger (e.g., frequent displays of temper, constant anger, recurrent physical fights).
ix.Transient, stress-related paranoid ideation or severe dissociative symptoms.
3.I have noted that Dr T had considered a diagnosis of Borderline Personality Disorder in his report dated 30th June 2016. I have applied both the DSM-5 Diagnostic criteria and the advice of NHMRC Clinical Practice Guideline for the Management of Borderline 2012 to the contents of Dr T’s report concerning [the mother] and I am unable to confirm a diagnosis of Borderline Personality Disorder.
4.Hence my clinical opinion that [the mother] does not qualify for a diagnosis of Borderline Personality Disorder remains unchanged, even after reviewing the psychiatric assessment report of Dr T regarding [the mother].
Oral evidence of Dr R
Dr R conceded in cross-examination that he had not provided a medicolegal report in respect of the mother. He said that he was qualified to provide medicolegal reports. However, he said that, in the present case, the mother had attended upon him for clinical purposes.
Dr R also conceded in cross-examination that he had not, at the time of his first report, read Dr T’s report. It was put to Dr R that the mother may have filtered the information that she provided to him to conceal information that may have led him to diagnose borderline personality disorder. Dr R said that all psychiatric patients can filter the information they provide but that psychiatrists have other means to enable them to reach an accurate diagnosis.
Dr R maintained that his clinical assessment of the mother was at least as thorough as Dr T’s. Dr R said that he was a psychiatrist who specialises in borderline personality disorder. He said that, in his practice, he routinely gives second, third and fourth opinions to colleagues where patients are not co-operative and actively resist a diagnosis of borderline personality disorder. Dr R maintained that he was well able to make a valid diagnosis whether it was seen through the lens of medicolegal psychiatry or not.
Dr R said that a difference between a clinical assessment and a medicolegal assessment was that, in the latter case, solicitors asked particular questions directed to particular aspects of the legal case. Dr R considered that, in the medicolegal context, patients might be more anxious and less co-operative with the psychiatrist.
Dr R said that he frequently provided treatment for people who did not initially accept the diagnosis of borderline personality disorder but did so later.
A good deal of cross examination was addressed to the question of whether the mother had misled Dr R by not telling him that she had suffered childhood trauma arising from her parents’ separation. Dr R explained that childhood trauma in the context of a diagnosis of borderline personality disorder is not a difficult parental separation but much more serious things, such as sexual abuse, physical abuse, emotional abuse, neglect and an invalidating childhood atmosphere.
Dr R said that he did not see evidence for a diagnosis of borderline personality disorder in Dr T’s report.
In re-examination, Dr R, said that, for a diagnosis of borderline personality disorder, a person needed to satisfy five of the nine diagnostic criteria in the DSM-5. Dr R said that childhood trauma was not one of the diagnostic criteria.
Dr R denied that the mother could have fooled him. He said that his practice involved dealing with people who were not co-operative and did not wish to give information. Dr R considered that a patient would be more co-operative and open in a clinical assessment than in a medicolegal assessment where they were more likely to be defensive. Dr R considered that there were more likely to be biases on the psychiatrist’s part in a medicolegal assessment than in a clinical assessment because, in the latter, the psychiatrist was only interested in the welfare of the patient.
Dr R said that borderline personality disorder was a very serious mental illness. He said that:
a)ten per cent of people with the disorder die by suicide;
b)eighty per cent of people with the disorder self-injure; and
c)the disorder reduces life expectancy by 20 years.
Dr R considered that the mother’s relationship difficulties, including with the father, did not meet the criteria for borderline personality disorder. Dr R did not find that the mother had difficulty naming or understanding emotions. Dr R did not find that the mother reached the threshold for anger discontrol. Dr R did not consider that the mother had any significant traits of borderline personality disorder.
Oral evidence of Dr T
Dr T said in cross-examination that it was not appropriate to use the DSM-5 criteria in forensic circumstances. He said that Dr R’s assessment was worthless because he had gone straight to the diagnostic criteria and considered the case in a vacuum rather than considering all of the circumstances. Dr T also said that the two tests administered by associate Dr R had no validity.
Dr T said that the assessment prepared by Dr R was only three pages in length, had none of the information that had been available to Dr T, was superficial and revealed a tick a box approach.
Dr T conceded that the mother had not engaged in self harm, but said that she did have some suicidal ideation many years ago while medicated for Crohn’s disease. Dr T conceded that these issues were not persistent and pervasive in the mother’s case.
Dr T was reminded that the mother had given birth 11 weeks before the interview with him and was presumably not getting proper sleep. Dr T was asked what impact that might have had on the mother’s presentation. Dr T said:
Well, at the time that I saw her, she wasn’t describing sleep disturbance. … She was able to detail her concerns in the absence of fatigue.[1]
[1] Tr. p.253, l.16-19.
Those statements were inconsistent with Dr T’s own report where he said:
[The mother] told me she was very anxious about the assessment and had not slept well the night before …
The cross-examination of Dr T was quite lengthy. However, he ultimately did not change his view that the mother has borderline personality disorder.
Dr T’s report, like many psychiatric and psychological reports filed in this court for family law purposes, did not set out the facts on which his report was based. He appears to have been of the view that the father had not assaulted the mother. Dr T indicated that, if it turned out that the father had assaulted the mother, he would not necessarily change his diagnosis.
Dr T said that, contrary to DSM-5, it was not necessary for a person to satisfy five of the nine criteria for borderline personality disorder for that diagnosis to be made. Dr T said that the process of diagnosis was more complex than ticking off a checklist.
Dr T said that the matters that led him to conclude that the mother had borderline personality disorder were:
a)her manner of presentation;
b)her high levels of insecurity;
c)her emotional reactivity, including to the assessment itself, when she became irate when challenged;
d)her view that her own father and the father in the present proceedings were abusive;
e)her history of mood swings and being unable to control her emotions;
f)her high levels of anxiety; and
g)her being enmeshed with her mother rather than attached.
Does the mother have borderline personality disorder?
In relation to the question of whether the mother has borderline personality disorder, I prefer the evidence of Dr R to the evidence of Dr T. That is for a number of reasons.
Firstly, while both Dr R and Dr T are consultant psychiatrists, Dr R has much more experience in the area of borderline personality disorder.
Secondly, many of the particular factors that Dr T said he relied upon to form his diagnosis could obviously have been impacted by the mother having given birth only a couple of months before the interview with Dr T. In particular, in his oral evidence, Dr T said that the mother in her interview was not affected by poor sleep. However, in his written report, Dr T did record that the mother had reported sleeping poorly the night before the interview. As we all know, poor sleep can result in people not being themselves, and being more emotional or reactive than usual.
Thirdly, Dr T apparently considered that the mother had inaccurately formed the view that the father was abusive towards her as a fanciful perceived repeat of the way her own father had treated her mother. However, as discussed below, I consider that the father in reality was abusive towards the mother and in fact assaulted her on at least one occasion.
Fourthly, Dr T’s criticisms of Dr R’s reports were unjustified. It is true that Dr R’s reports were brief. However, he did not attempt to set out a summary of the entire conversations that he had had with the mother. He was expressing a view to the mother’s general practitioner for the purposes of providing treatment or not as required. That context does not indicate any inadequacy in the diagnosis itself. It is no doubt the usual way in which diagnoses are expressed outside the medicolegal context.
I accept that the two tests administered by Dr R would probably not be enough by themselves to lead to a diagnosis or exclude a diagnosis of borderline personality disorder. However, I see no reason to doubt that they are useful tools to assist in a diagnosis based on the broader enquiries which Dr R also undertook in relation to the mother. For his second report, Dr R did consider all of the material contained in Dr T’s report.
Fifthly, the matters identified by Dr T in his oral evidence as leading him to diagnose the mother with borderline personality disorder do not amount to five of the nine diagnostic criteria in either the DSM-5 or the National Health and Medical Research Council Clinical Practice Guideline for the Management of Borderline Personality Disorder (which adopted the DSM-4, and which is relevantly the same as the DSM-5). I accept that such criteria should not be treated as a checklist and that the diagnosis is a complex matter. However, the DSM-5 reflects the general body of expert opinion that at least five of the nine criteria need to be satisfied for a diagnosis of borderline personality disorder. The matters identified by Dr T in his oral evidence do not correspond to at least five of the DSM-5 criteria.
Sixthly, Dr T seems to have formed the view that the mother had repeated intense and unstable relationships when in fact she had a number of relationships that lasted for some years and ended for entirely understandable reasons.
Seventhly, Mr V did not express the view that the mother has borderline personality disorder. Obviously, the views of psychiatrists must be given more weight than the view of a psychologist on this issue, but Mr V’s perspective is not entirely irrelevant, given that he is a trained psychologist who spent time with the mother on two separate occasions for the purposes of family report interviews.
In summary, I accept the evidence of Dr R that the mother does not have borderline personality disorder.
The other diagnosis made by Dr T, that the mother has adjustment disorder with anxious mood, was not challenged and I accept it.
Mr V’s first family report
Mr V prepared two family reports in this matter. In his first family report, dated 26 July 2016, Mr V said:
21.From [the mother’s] perspective, the current arrangement is not working and it is impacting negatively upon X. She is concerned that X’s behavior is ill effected as a consequence of the time spent with his father, explaining that he has become very clingy, wants to sleep in her bed, wants to touch her all the time and seems to need reassurance about her and her whereabouts. She described this behavior in X as significantly different to how he has been previously. Her observation is that [the father] seems unable to manage or properly care for the children and that because communication between them is so poor, they cannot agree on even the most basic routines for X.
…
23.According to [the mother], the attitude of [the father] in this regard is typical of his controlling and intransigent nature. She explained that he simply does not compromise and that everything has to literally be his way or there is conflict. She explained that a simple example is their disagreement about the middle name chosen for their daughter. She explained that this was typical of how [the father] chooses the course of greatest resistance and does so in order to create the most difficulty for her. She explained that from her perspective, [the father] is motivated to (sic) cause her hell. She told me that things were so terrible in the relationship that she left on 29 November 2015 and yet it was not her intention to separate but rather to withdraw herself from an impossible situation. The impression conveyed by [the mother] was that the whole process was accelerated by [the father] filing for a divorce when from her perspective, it was completely unexpected. She was then confronted with his application for 60% care of X when in reality he had done none of the parenting. As outlined in her affidavit, there are many anecdotes about how [the father] was uninvolved and neglected X’s care; distilled, these portray him as lacking attunement, being unresponsive, and unaware of X and his needs. She believes that [the father] imposes excessive stress and pressure on X and in this regard, she identifies strongly with X’s experience, as she too felt that she was subjected to undue pressure, expectation and an unremitting requirement that she comply and acquiesce to [the father’s] position. I note in this regard, there is a mirroring of allegations, and that [the father] too portrays himself as always having to back down in order to keep the peace.
…
28.X was observed in the company of his parents separately. Given [the mother’s] concerns, it was significant that X’ transition into his father’s care was completely unremarkable. Upon seeing his father, X ran into his father’s arms. He conveyed no separation anxiety and engaged enthusiastically and confidently with his father.
29.X’s behavior towards his father was strongly indicative of him feeling safe, confident and relaxed. He happily allowed his father to pick him up, hold him, help him balance when reaching up for objects and he happily allowed his father to pick him up so as to enable him to get access to a top shelf. Together they maintained an excellent level of communication. Their level of interaction was comfortable, confident and reciprocal. It appeared to me that [the father] was able to read his son’s emotional state, anticipate his needs and therefore connect comfortably; despite [the mother’s] concerns, it appeared to me that [the father] was in fact well attuned to his son, and was well able to read and respond to his internal state. His style was inclusive and he impressed as confident, attentive, engaged and relaxed with his son. X was spontaneous, conveyed no hesitation and at the time of departure, became distressed saying “.... daddy more daddy, play daddy more”. He however settled quickly and then settled easily with his mother; even though distressed at the point of departure, he was soon comforted by her.
30.X was equally relaxed and settled with his mother. She too conveyed a real sense of being able to read him and his emotional state, they were connected, their interaction was calm and cooperative, they interacted in a positive, easy and fluid manner. [The mother] impressed as enthusiastic and good humored with her son but placed firm and reasonable limits around him; she acknowledged his feelings but still was firm, direct and managed him well.
…
35.As is so often the case in matters in which there is such high conflict, [the father] and [the mother] give very different accounts of what transpired, and particularly so when considered in the context of their respective impressions of the other’s intent, motivation and vulnerabilities. These dynamics are not uncommon in families where there is a high conflict. In most high conflict of situations, it is common that one or other party shows features of personality difficulty and that associated with these personality vulnerabilities is an unremitting, internally driven level of anxiety that is projected upon the other.
36.I note the description by Dr T of [the mother] having features of a Borderline Personality disorder. It is common for people who attract this description to have a strong fear of rejection and abandonment. They also show a tendency to split the world into those who are with them and those who are against them, in one breath idealizing and then vilifying the same person. It is commonplace that people who show these features have stormy and difficult relationships, that their emotional needs are often left unmet, that in turn justifying angry rejection. A similarly common feature is justification based on an external locus of control such that they justify their behavior in relation to the other person based on their perceptions of that person’s intent and motivation; their fears and anxiety are usually associated with a mistaken assessment of danger, be that a threat of rejection, abandonment or as may be the case with [the mother], a fear that [the father] will remove the children from her care.
37.Ultimately, matters historical will need to be tested and the Court will need to make its own determination as to what did and did not occur, and whose behavior contributed the most actively to the demise in the marriage. However, I note points of contradiction in the history and my own observation. It seemed clear that [the mother] has a significant concern about [the father] and his capacity to care for the children emanating from a lack of interest and contribution. Again, whether this is or is not a correct assessment will need to be determined by the Court, but, I note my observations of [the father], his interaction with X, but more importantly, X’s interaction with his father. There is an incongruence between the description by [the mother] of [the father], his lack of interest, lack of care and lack of emotional connection to X, and the more obvious reciprocal interaction between X and his father.
38.X behaved towards his father as though he was safe, secure and trusted. He literally leapt into his father’s arms, enjoyed his father’s physical contact, played easily and comfortably and together they showed a real capacity to interact and reflect upon each other’s emotional experiences, and most importantly, [the father] seemed well able to anticipate and respond to his son’s emotional needs. My observations of [the father] and X did not fit with the description given by [the mother] of their interaction. I would have expected that X would be more anxious, more hesitant and more tentative. Whilst the changes in X’ behavior as described by [the mother] are important to consider, this behavior is not uncommon in that age group of children. There may be a tendency on the part of [the mother] to perceive danger and threat to X when this level of danger and threat does not exist
39.It should be noted however that X has an excellent relationship with his mother and that she was patient, attentive, related warmly, easily, confidently and comfortably with him. He was easily comforted by her when he was distressed by his father’s departure; it is worth noting that he was distressed at his father’s departure, protested him leaving and stated clearly that he wanted his father to return. There is a sense of loss that is apparent in X’s presentation that is noteworthy and I think fundamental to understanding his experience and the difficulties associated with moving between parents when, in the emotional middle ground between his parents, there is so much mistrust and anxiety. It is almost inevitable that X will be affected by this emotion.
40.[The father] is certainly apprehensive in relation to [the mother]. He perceives in her a volatility, and a potential for false allegation. Even though it is [the mother’s] suggestion that he see Y when he collects and delivers X, and that he do so at the front part of the house where he can be given privacy and space, it is simply not a viable option to [the father] who believes that by so doing, exposes him to extraordinary risk and further allegation. In some ways, his expectation is that further allegations will be directed at him and that he will be powerless to intervene and that [the mother], because of her articulate and compelling presentation, will be believed.
41.There are three parts to this assessment that are deserving of consideration:
42.The first is the history as both [the mother] and [the father] have described it. They clearly had problems, and their relationship [became] untenable. By way of summary I note that [the mother] maintains that [the father] was unsupportive, emotionally unavailable, absent, critical and hostile. [The father] vigorously denies this portrayal and in particular with regards to the children, maintains that he was present at the home for a period of ten months until the decision by [the mother] to leave. I note too his concern that on both occasions that she left the country she did so without adequately informing him and that this was an impulsive action reflective of her and her functioning.
43.The description by Dr T of [the mother] having traits of core borderline Personality Disorder, when considered in the context of my assessment, give a cogent explanation for the overlapping issues and give at least one explanation for why [the mother] is so anxious and views [the father] so critically and negatively. Consideration of the history may provide a different perspective.
44.The final consideration is the behavior of X and his relationship with his parents. Whilst I appreciate [the mother’s] concerns regarding X and risks to which he is exposed because of her concerns regarding [the father], in my assessment I saw no indication of this whatsoever and frankly, I saw strong indication of the opposite. As noted previously, a common feature of people with personality vulnerabilities in the context of conflict and divorce is that not only are they dealing with issues of rejection and abandonment but they are also prone to a mistaken assessment of danger, that is, that they perceive the origin of their internal anxiety as being their ex-partner when in fact the anxiety is more characterological and generated from within. This may be true of [the mother], and would be in keeping with the assessment of Dr T. Ultimately, the Court will need to make its own determination in relation to these matters.
45.Based on the information available at this stage, there is every indication to suggest that X should be seeing his father significantly and regularly.
46.With chronological age of 2 years and 8 months, X should comfortably be able to spend overnight stays with his father. My recommendation is that overnight stays start immediately, that they commence on a Saturday morning and finish on a Sunday night for a period of six alternate weekend cycles, that it then extend from Friday night to Sunday night for another eight alternate weekends cycles and then, if possible, that it extend until Monday morning. I understand that there may be a tyranny of distance and geographic limitations that will make a more creative plan difficult to implement. X should also be seeing his father in the alternate week, and there is no reason why he should not be seeing him for a whole day and an overnight if [the father’s] situation allows him. X could easily see his father from for example Wednesday morning until Thursday morning or Wednesday night until Thursday night.
47.In twelve months this should increase to include an extra overnight mid week in the alternate week so that ultimately X will spend five nights with his father in a fourteen-night cycle.
48.The options in relation to Y are significantly more complicated. She needs to see her father more frequently for short periods, not less frequently for long periods. Given the point of impasse between [the mother] and [the father], it is difficult to foresee how a cooperative plan could be organized. It would obviously make sense for [the father] to see Y around the collection and delivery of X, albeit that ideally more frequent contact would be desirable. In the absence of any agreement, the alternatives are a public place or transition at a contact centre at a mid point.
49.It will be important for Y to have regular, frequent and consistent contact with her father in order for him to become a safe, familiar and predictable figure in her life. Given the state of the relationship between [the mother] and [the father], this may prove difficult. Something [like] a 65(L) Order that would provide someone to assist with the implementation of the Orders given Y’s tender age might be a way forward. The Post Separation Parenting program offered by Ms B, or the assistance of an experienced practitioner such as Ms L might prove helpful.
At the time of Mr V’s first family report, Y was three months old and X was not quite three years old. By the time of the second family report, which was dated 7 August 2017, Y was 16 months old and X was almost four years old.
Mr V’s second family report
Mr V said in his family report dated 7 August 2017 that:
4.By way of summary:
·My report highlighted significant contradictions in the history, and a persistent level of incongruence in that that was described by the parents. These matters may need to be considered by the trial judge.
·My direct clinical observations of X were that he related well with his parents; he engaged with his father in a manner that suggested that he perceived his father to be safe, secure and trusted, he was physically affectionate, and together they played easily and comfortably.
·I noted that my observation of [the father] and X did not fit with the description given by [the mother] of X’s relationship with his father, and that X did not display the anxiety or hesitation that I would have expected given her description.
·I noted that the sort of behaviour that was of concern to [the mother] is not uncommon in that age range of children and that she may perceive danger and threat to X at a level that did not necessarily exist.
·My observations of X with his mother were unequivocally positive, he was easily comforted by her when distressed at the point of his father’s departure, and she too appeared to provide to X a secure base and a safe haven.
…
8.[The father] told me that he has come to accept that not only has [the mother] not changed, but that she is not capable of change. He is seeking what he feels will be fair and balanced relationship with the children. He explained that the only way to protect equity and balance is by equal care, and even though he appreciates the need to progress more slowly for Y, he nonetheless had a clear plan. His proposal is that he spend regular time with both children and that the time progress with Y in a measured and graduated fashion.
…
12.According to [the father], there needs to be a clear and direct plan in order to reduce the extent to which [the mother] limits his time with the children. He described her as a person who is simply unable to negotiate, that her style is one of unilateral decision making, and that consequently, she has no qualms about interfering and limiting his time with the children. Even though he would like to co-parent, he has no confidence that [the mother] is inclined or capable of doing so, and that consequently the only option available is to establish clear and immutable Court Orders.
…
31. [The father] and [the mother] were seen separately in the company of their children. It is again worth noting that in the company of their parents, the children related well. With their mother both children settled quickly, impressed as happy, engage[d], and settled easily. She shared her focus and attention easily between them, with my observation being that both children tended to orbit about her. Both X and Y seemed well engaged with their mother, they displayed a strong and persistent connection to her, and [the mother] appeared well attuned and confident in her parenting. Her style was firm, direct and unambiguous; I noted that X conveyed a flavour of being both oppositional and defiant, although this was well-managed by his mother.
32.My observations of [the father] with the children were also extremely positive. Both separated easily from their mother, and comfortably and confidently followed their father to my playroom. Y was particularly comfortable and relaxed in her father’s arms, initiating hugs, maintaining close physical contact, and very obviously enjoying the reciprocal nature of that interaction. What is particularly important about this observation is that Y used her father as a safe base, and in the unfamiliar circumstances of my office, was obviously comforted and reassured by his presence. The interaction of both children with their father seemed spontaneous and genuine, with a relaxed, confident and comfortable style. X in particular was extremely enthusiastic, very talkative, and actively seeking of his father’s participation, that [the father] was able to deliver effortlessly. [The father] obviously understood the topics of conversation raised by X, and so was able to enter into easy conversation; his style was direct, clear and inviting; he was inclusive of X whilst holding and enjoying Y. The other noteworthy feature of Y’s behaviour was that not only was she very comfortable snuggling into and enjoying the physical contact with her father, but that she was also keen to explore the room, and at one point when they played hide and seek, she squealed with delight.
33.Qualitatively, [the mother] and [the father] engaged with, and related to their children warmly and easily. The indications were that the children both showed strong psychological emotional investment to their parents, treated their parents as safe and secure figures in their lives, were obviously comforted by their parents’ presence, and entered into an easy and reciprocal relationship with both. [The mother] and [the father] interacted easily and effortlessly with their children, and both children treated their parents as both secure bases from which to launch and explore and play, but also safe havens from where they could enjoy comfort and emotional reassurance. It appeared to me that from both children’s perspective, their parents were able to interchange in this capacity; this is what is expected in healthy development.
34. It may be worth noting, however, that despite my positive observations of X, I also observed that he could be quite aggressive with the toys, kicking and throwing items around in direct response to feelings of frustration. There was a flavour of him being both oppositional and defiant, and I noted that the precipitating event that seemed to spark this reaction was being told by his father that it was time to pack up and that he would have to leave. In response, he was clearly angry and irritable, became aggressive towards his sister, in response to which Mr Haggart immediately and firmly intervened. I observed the change in his behaviour to negative, aggressive and even provocative; the clear precipitating event was the end of the session.
Ms L
35.Ms L has consulted with [the mother] and [the father], both together and individually. Given the nature of the concerns raised by [the mother], Ms L’s observations are important. She explained that from her perspective, [the father’s] behaviour towards [the mother] was not threatening, but rather, in response to [the father’s] requests, [the mother] was unresponsive, to which [the father] responded that if they could not resolve the agreement, that he would have no option but to take the matter to the Court; it was to this response that [the mother] responded that he was threatening her. Ms L told me that she saw no indication to suggest that [he father] was aggressive, or any indication to support the suggestion that he had engaged in Gaslighting. She added that she did not have any experience of [the father] being aggressive towards [the mother], that she was not aware of any incidents of [the father] following her to her car, and instead, she commented that more often than not, he stayed behind in order to make the follow up appointment. Ms L checked with her reception staff who informed her that they too had no direct experience of there having been any aggressive behaviour on the part of [the father].
36.Regarding the description of [the father] and his behaviour by [the mother], Ms L reported that [the father] could have been described as more angry than aggressive during the early sessions, but that he had responded extremely well to her input, changed his approach and adopted a more moderate perspective. She also told me that the vaccination issue continues to be a source of impasse between them, and that even recently, [the mother] cited cases about children having been wheelchair bound after having been vaccinated and referred to the brain damage argument to add to the Autism debate.
37.Ms L's assessment was that [the mother] and [the father] would struggle to co-parent and that they would probably need to parallel parent. Her direct observation was that there was no evidence of either parent using threats or aggression in her presence, but that [the mother] was anxious about [the father], change over times and the Vaccination issue; she was adamant that a clear and unequivocal parenting plan would be of assistance.
CONCLUSIONS
38.With the passage of time, the respective narratives of [the father] and [the mother] have become more consolidated. [The mother’s] narrative entails her having gained a deeper understanding of what she believes to be [the father] Gaslighting her. She described her greater understanding of the subtle but persistent process of manipulation, dishonesty, false information, and misinformation intended to cause her to doubt herself, question her judgement and undermine her sense of reality. She described as examples of this his claims in relation to Dr R, and what she is alleged to have said in relation to the whole vaccination exemption issue.
39.Where this is significant is that according to [the mother], in her contact with Dr R’s surgery, they confirmed that no correspondence had been forwarded, and later contacted her to confirm that they had spoken to Dr R who told her that no such correspondence had been forthcoming. [The father] however showed to me the letter sent to him by Dr R in which she states clearly and categorically that in her opinion, that the test results did not qualify X for an immunization exemption, and that by implication, X should be vaccinated. I note that according to [the father], that [the mother] is single-minded and sought a second opinion from someone whom he suspects is sympathetic to her vaccination beliefs. I also note his reference to her allegations regarding his behaviour, in particular in the sessions with Ms L, and specifically, his alleged aggression, threats and intimidation, that [the mother] claims is typical of the way he behaves, and yet I also note that Ms L does not confirm this interpretation by [the mother]; instead Ms L suggested that [the father] did not agree with [the mother], and that she tended to perceive his behaviour and his response as a threat and intimidation. I refer to my previous report in this matter in which I draw attention to how people with certain personality types harbour an internal level of anxiety, feel mistrust, feel unsafe, and especially so in the context of loss and abandonment, and how this can become the filter through which they interpret events. Ultimately, it will be a matter for the Court to determine and balance the other professional evidence, but on a factual basis, I note that there are at least two pieces of information that disconfirm [the mother’s] interpretation of events, question her construction of what transpired, and at least raise the possibility that [the father’s] concerns have some merit.
40.In some ways, the concerns that [the mother] and [the father] harbour in relation to each other, and even in their subsequent behaviour and what this might imply, is not necessarily directly relevant to the issues that need to be determined in relation to the children. My observation of both X and Y with their parents is encouraging and positive. In particular, given Y’s tender years, my observations of her in the company of her father are tremendously reassuring, and clearly indicate that she finds the transitions comfortable, that she feels safe and secure in his care, that she uses him as a safe base and is able to feel comforted by him. Again, my observations of Y in the company of [her father] support the description of Y provided by [the father]. My observations of X in the company of his father were also very reassuring; when he was presented with the prospect of the session ending and his father leaving, X’s behaviour became irritable, he became aggressive with the toys, throwing and kicking them, and his demeanour changed. This was managed firmly and effectively by [the father], and even at the point of transition when X was distressed, [the father] behaved and responded appropriately, as did [the mother], in their efforts to calm and reassure X.
41.From a child welfare perspective, notwithstanding the concerns that the parents harbour about each other, the children’s interaction with their parents was reassuring, and allows for some confident decisions to be made in relation to them. The indications are that both children perceive their parents are safe and secure, that they can go to each parent for comfort, and that their expectation is that their parents will be able to respond and reassure them. It appears to me that both children have an expectation that at times of stress, that their parents will be able to comfort and reassure them. My direct observations of the children in the company of their father were very reassuring, and I think there is every indication to suggest that the more time he has spent with both, the better and more secure they have felt with him. I do agree that the current arrangement is fragmented and that there is too long a period of time between contacts. Whilst I understand [the mother’s] concerns regarding the children, their behavioural repertoire suggests that they are coping and managing more than just well.
42.There are obviously matters that are relevant to this dispute that may fall beyond the scope of my expertise. Issues pertaining to the psychological functioning and personality structure of both parents and what this brings to the dispute is something that needs to be factored. I have read Dr T’s report, and from my perspective, this report does lend support to the hypothesis that [the mother] becomes more anxious, perceives threat, acts cautiously, and may perceive [the father] as more of a danger and a threat than the reality of his behaviour suggests. I also note the comments made by Ms L that bring into question the assessment of threat and danger experienced by [the mother], and even though it might be very real to [the mother], that it may not be as assessed by others.
43.In relation to the specific issues relating to the children, there is no doubt that Y’s time with her father should progress and consistently so. [The father] shows good capacity to reflect upon Y and her needs, and even his proposal about progressing the time is measured and restrained. My view is that we should progress cautiously but confidently in relation to Y, and she should continue to see her father regularly, but more frequently than is currently the case.
44.In my view, the children should be spending more time with their father than they are currently. It is not likely that there will be a shared or cooperative parenting arrangement and so plans need to be considered for parallel parenting. There needs to be a fixed and immutable plan. Ambiguity is likely to create conflict. The history suggests that they have not been able to negotiate through or be flexible. [The father] clearly feels a power differential and that there is no point in discussion and negotiation with [the mother] because she does not alter her position whatsoever; she feels that she is acting in the best interests of the children but that [the father] is not able to elevate their needs ahead of his own; it is likely that this polarity and the resultant impasse will continue. Consequently, they need a clear plan moving forward. They need clear, specific and unambiguous Court Orders, and the very clear understanding that Court Orders are not merely advice or suggestions but are the legal imperative upon which action must be predicated.
45.Whilst testing of evidence and new information may change the recommendations significantly, based on the information available, the concerns harboured in my previous report still apply; my view in relation to the vaccination issue is that the Court should defer to the expert body in the field and follow either the guidelines established by the Australian Medical Association, the Royal College of Paediatricians or another equally reputable source.
RECOMMENDATIONS
46.Regardless of what else might be alleged, and whatever other concerns there might be, the way forward in relation to the children is in my view straightforward:
47.Y should continue to see her father regularly, but more frequently than is currently the case:
a.Y see her father each Wednesday, and each alternate weekend on Saturday and Sunday from 10:00 am - 6pm;
b.Y should be with her father in preference to her being in extended periods of childcare.
c.The time spent on the Wednesday should seek to maximize the day contact available for the children to be with their father;
d.There is no reason why Y cannot spend full days with her father;
e.Overnight stays from Saturday morning to Sunday evening should be introduced when Y turns 30 months of age;
f.When Y turns 36 months of age, these could be increased by one night to include Friday to Sunday evening;
g.When Y turns 42 months of age, the time could be extended until Monday morning, or in the alternative, one of the intervening Wednesday nights could increase to overnight;
h.By the time, Y is four years of age, she could spend 5 nights in a 14-night cycle with her father, preferably in synchrony with X, from a Thursday until a Monday morning and then overnight Thursday in the alternate week;
i.The broad rule of thumb of her “age plus a day” could apply to the amount of time in a single consecutive period for holidays; when she is 2-2.5 years she could have holiday periods of not more than 3 nights; when 3 years of age, 4 nights and when 4 years of age 5 nights. There should be a sharing of holidays when she commences primary school.
48.Regarding X, under the current Orders he will spend 4 nights with his father in a 14 night cycle starting August 2017.
a.I would suggest that at his fourth birthday, that this increase to 5 nights in a 14 night cycle.
b.He should comfortably have 7 nights with his father during designated holiday periods.
49.Both children should share holidays once they attend primary school.
a.Achieving synchrony between X and Y around a 5:9 arrangement should be the priority. If an equal care arrangement is to be introduced, it would be sensible to have 12 months consolidation of the 5:9 plan.
b.An equal care arrangement be that either on a 2:2:5:5 basis or a 7:7.
c.It is likely that Y will find an increase in time easier because of the presence of her brother.
50.These recommendations are obviously only guidelines, as the individual characteristics and temperament of the children will have a significant contribution on the decisions made. The indications are that the children are coping well now, and therefore that they will continue in to the future. Any parenting time arrangement will need to factor in the unlikelihood that the parents will ever co-parent constructively; where possible the collection and delivery of the children should be to and from school or kindergarten. Something like a Section 65(L) Order to assist with the implementation of the Orders, as compared to debate about the appropriateness of the Orders might be helpful, as would a reminder that the Orders are not advice or recommendations, but clear directions that need to be followed.
The written recommendations of Mr V were for both X and Y to eventually have five nights a fortnight with their father. The reference to X and Y spending equal time with their father was not a recommendation, but a recognition that the father had proposed that arrangement and the court might order it. In that event, Mr V recommended a 12 month consolidation of the 5:9 arrangement.
However, in all the circumstances of this case, the mother’s proposal for the children’s and the parents’ birthdays seems to be the best available solution, with three amendments. If either child is at school or kindergarten, the time should be spent outside school or kindergarten hours. For such young children, the return time to the other parent should be earlier, so that they can have some celebratory time with the other parent as well, before getting ready for bed. If the birthday falls on a changeover day, there should be no additional time in the afternoon or evening. It is sufficient in such a case if presents are given in the morning.
c. Y
In relation to Y, the father proposed that:
3.The child Y live with each parent on the following basis on a 2 week cycle, with Week 1 on odd Calendar Weeks and Week 2 on even Calendar Weeks:-
With the Father
(a)Commencing from the date of the Orders:-
(i) Each Thursday from 4pm to 7pm.
(ii) In week 1 on Sunday from 10am to 6pm.
(iii) In week 2 from Saturday 10am to 6pm.
(b)Y aged 2 ½ years, commencing Wednesday 10 October 2018 as follows:-
(i) Each Wednesday from 4pm to 7pm.
(ii) In week 1 from 10am Saturday to 6pm Sunday.
(c)Y aged 3 years, commencing Wednesday 10 April 2019 as follows:-
(i) Each Wednesday from 4pm to 7pm.
(ii) In week 1 from 4pm Friday to 6pm Sunday.
(d)Y aged 3 ½ years, commencing Wednesday 10 October 2019 as follows:-
(i) In week 1 from 4pm Friday to 4pm Monday.
(ii) In week 2 from 4pm Wednesday to 4pm Thursday.
(e)Y aged 4 years, commencing Wednesday, 8 April 2020:-
(i) In week 1 from 4pm Thursday to 4pm Monday.
(ii) In week 2 from 4pm Wednesday to 4pm Thursday.
(f)Y aged 5 years, commencing Wednesday, 7 April 2021 with such times as to correspond with X living with the Father
(i) In week 1 from 4pm Wednesday to 4pm Monday.
(ii) In week 2 from 4pm Wednesday to 4pm Friday.
(g)Y aged 6 years, commencing Wednesday, 6 April 2022 with such times as to correspond with X living with the Father.
(i) In week 2 from 4pm Friday until Week 1 4pm Friday on an alternate week basis.
(h)Up to Y is aged 3 ½ years, if the Father is available, the Thursday or Wednesday time to be modified upon 7 days’ notice request to maximise the day with the father, in the event the parties can’t reach agreement from 10am to 7pm.
(i)The Order provide that holiday arrangements for Y would be to spend consecutive nights to coincide with the Father’s time with X up to the point she follows the same arrangements as him.
(i) Aged 20 to 24 months. 1 overnight, from 4pm to 10am commencing Sunday 24 December. The 7 consecutive nights with X to be divided 1:2:1:2:1 for Y with the father and mother respectively.
(ii) Aged 2 years, 3 consecutive nights, from 10am to 10am divided 3:1:3 for Y with the father and mother respectively.
(iii) Aged 3 years, 4 consecutive nights, from 10am to 10am divided 4:1:2 for Y with the father and mother respectively.
(iv) Aged 4 years, 7 consecutive nights to coincide with the Father’s time with X.
And at all other times with the mother.
In relation to Y, the mother proposed that:
10.Y spend time with the Father as follows:
a.Until 7 October 2018:
i. Each Wednesday from 4pm to 7pm, with the Mother to deliver and collect Y from the Father’s home when X is in his care and the Father to collect and deliver Y to the Mother’s home when X is not in his care;
ii. Each alternate weekend to take place on X’s weekend with the Father, from 9am Saturday to 1pm Saturday and from 1pm Sunday to 5pm Sunday with such time to extend by one hour per fortnight until time commences at 9am and concludes at 5pm, with the Mother to deliver and collect Y from the Father’s home;
b.From 7 October 2018 in a two week cycle, with the Mother to deliver and collect Y from the Father’s home:
i. In week one on the same weekend as X is with the Father, from 9am Saturday to 5pm Sunday;
ii. In week two, from Wednesday from 4pm to 7pm;
c.From 7 April 2019:
i. During school terms in a two week cycle, with the Father to collect Y at the commencement of his time and the Mother to collect Y from the Father's home at the conclusion of her time:
1.In week one on the same weekend as X is with the Father, from the conclusion of kindergarten Friday (or 4pm Friday if not a kindergarten day) to 5pm Sunday;
2.In week two from Wednesday from 4pm to 7pm;
ii. During school holidays, for three consecutive nights, whilst X is in the Father’s care, as agreed between the parties and failing agreement for the first three nights of each period when X is in the Father’s care during the school term holidays and long summer school holidays;
iii. For the avoidance of doubt, the time in paragraph 10(c)(i) be suspended during all school holiday periods
d.From 7 October 2019:
i. During school terms in a two week cycle, with the Father to collect and return Y at the commencement and conclusion of her time:
1.In week one on the same weekend as X is with the Father, from the conclusion of kindergarten Friday (or 4pm Friday if not a kindergarten day) to the commencement of kindergarten on Monday (or 10am Monday if not a kindergarten day);
2.In week two, from the conclusion of kindergarten Wednesday (or 4pm Wednesday if not a kindergarten day) to the commencement of kindergarten on Thursday (or 10am Thursday if not a kindergarten day).
ii. During school holidays, for four consecutive nights, whilst X is in the Father’s care, as agreed between the parties and failing agreement for the first four nights of each period when X is in the Father’s care during the school term holidays and long summer school holidays;
iii. For the avoidance of doubt, the time in paragraph 10(d)(i) be suspended during all school holiday periods
e.From 7 April 2020 until Y commences school:
i. During school terms in a two week cycle, with the Father to collect and return Y at the commencement and conclusion of her time:
1.In week one on the same weekend as X is with the Father, from the conclusion of kindergarten Friday (or 4pm Friday if not a kindergarten day) to the commencement of kindergarten on Monday (or 10am Monday if not a kindergarten day);
2.In week two, from the conclusion of kindergarten Wednesday (or 4pm Wednesday if not a kindergarten day) to the commencement of kindergarten on Thursday (or 10am Thursday if not a kindergarten day).
ii. During school holidays until 7 April 2021, for five consecutive nights, whilst X is in the Father’s care, as agreed between the parties and failing agreement for the first five nights of each period when X is in the Father’s care during the school term holidays and long summer school holidays;
iii. If Y does not commence school in 2021, during school holidays from 7 April 2021, for six consecutive nights, whilst X is in the Father’s care, as agreed between the parties and failing agreement for the first six nights of each period when X is in the Father’s care during the school term holidays and long summer school holidays;
iv. For the avoidance of doubt, the time in paragraph 10(e)(i) be suspended during all school holiday periods
f.Once Y commences school:
i. During school terms in a two week cycle (in the same cycle as X):
1.In week one, from the conclusion of school on Thursday (or 4pm if not a school day) until the commencement of school on Monday (or 10am if not a school day);
2.In week two, from the conclusion of school on Wednesday (or 4pm if not a school day) until the commencement of school on Thursday (or 10am if not a school day).
ii. During the school holidays, unless otherwise agreed between the parties in writing:
1.For one half of each school term holiday period, being the first half in even years and the second half in odd years;
2.In the long summer vacation period, commencing at 10am on 27 December a week about basis (7 consecutive nights);
3.For the avoidance of doubt, the time in paragraph 10(f)(i) be suspended during all school holiday periods
Mr V recommended that Y spend time with her father:
a)starting straight away, from 10am until 6pm each Wednesday and each alternate Saturday and Sunday;
b)from 7 October 2018:
i)from 10am to 6pm each Wednesday; and
ii)from 10am each alternate Saturday until 6pm the following Sunday;
c)from 7 April 2019:
i)from 10am to 6pm each Wednesday; and
ii)from 10am each alternate Friday until 6pm the following Sunday;
d)from 7 October 2019:
i)from 10am to 6pm each Wednesday; and
ii)from 10am each alternate Friday until 10am the following Monday; OR
iii)from 10am to 6pm on alternate Wednesdays; and
iv)from 10am on alternate Wednesdays until 10am the following Thursday; and
v)from 10am each alternate Friday until 6pm the following Sunday; and
e)from 7 April 2020, five nights in a fortnight at the same times as X; and
f)for school holidays:
i)from 7 April 2018, three nights;
ii)from 7 April 2019, four nights; and
iii)from 7 April 2020, five nights.
As can be seen, neither parent wanted Y to spend a full day midweek with her father. In view of the parental preferences, I accept that Y’s time with her father midweek should be initially confined from 4pm until 7pm. Also, the father initially preferred Thursdays. It seems to me to be reasonable to go with the father’s preference in this regard.
Additionally, the father preferred to spend time with Y on Saturday in one weekend, and Sunday in the next weekend. I understand why he might want this. However, it was not Mr V’s recommendation. Mr V’s recommendation was in keeping with the usual approach, where children spend alternate weekends with each parent, and allowed for a build up to overnight time on alternate weekends. I see no reason to depart from the usual approach.
When Friday nights with Y are introduced, the father preferred to start at 4pm on the Friday rather than 10am on the Friday, as recommended by Mr V. It seems reasonable to accept the father’s preference in this regard.
The parents have not given any sound reason to depart from Mr V’s recommendations. Obviously, in general, the mother wants to proceed more slowly and the father wants to proceed more quickly. Mr V recommended that Y’s time with her father increase gradually and slowly. I accept that recommendation. I consider that his recommendations contain an appropriate build up in Y’s time with her father. As Mr V said moving too quickly can be counterproductive. The father did not advance any reason in support of his proposals except that he wants them. I cannot see any sound reason to depart from Mr V’s recommendations in relation to Y.
More particularly, I cannot see any reason in Y’s case to eventually permit equal time. The reasons in relation to Y are even stronger than in relation to X, because she is that much younger. It is simply too early to know whether equal time will ever be in her best interests.
In all the circumstances of this case, I consider that Mr V’s recommendations are in the best interests of Y. There will be orders substantially in the terms of Mr V’s recommendations on the question of Y’s time with her father.
One particular issue that Mr V was not asked to clarify is exactly when Y should have the same holiday time with her father as X. Mr V recommended sharing holidays when Y starts school. The mother proposed a different arrangement depending on whether Y starts school in 2021 or 2022.
I consider that it is in Y’s best interests for Y to have the same holiday arrangement as X once she turns five on 7 April 2021, regardless of whether she starts school then. This will mean that the parents’ decision about when she starts school will not be impacted by their preferences about whether she has an extra night over the holidays with her father. The decision about when to start school is an important one, and should be free of such extraneous considerations.
The mother included in her proposals for Y’s time with her father some proposals for changeover. The question of changeover is dealt with separately below.
Easter
Neither parent advanced any specific proposals for Easter. Consequently, it will lie where it falls.
Changeover
The father’s proposal for changeover was:
10.That with respect to changeover the Father be responsible for collecting the children at the commencement of his time with them and the Mother be responsible for collecting the children at the commencement of her time with the children. Changeover to be at each parent’s home, or at the conclusion of Kindergarten or School unless otherwise agreed in writing such written notice to be provided at least 24 hours beforehand.
The mother’s proposal, in addition to the matters set out in her proposals for Y’s time with her father, was:
13.That unless otherwise specified in these orders, for the purposes of changeover, where changeover is unable to occur at the children’s schools/kindergarten:
a.For time during the school terms, the Father will collect the children at the commencement of their time with him and return them at the conclusion of their time;
b.That for the purposes of school holidays when Y is spending a shorter period of time than X with the Father, the Father will collect both children from the Mother’s home at the commencement of their time with him, the Mother will collect Y at the conclusion of her time with the Father, and the Father will return X at the conclusion of his time;
c.That for the purposes of school holidays when the children are spending the same amount of time with the Father, the Father will collect the children from the Mother’s home at the commencement of their time with him and the Mother will collect the children from the Father’s home at the conclusion of their time with him;
d.That for the purposes of special occasions, the Father will collect the children from the Mother's home at the commencement of their time with him and the Mother will collect the children from the Father's home at the conclusion of their time with him.
The proposals set out in the immediately preceding two paragraphs are similar, in that, except when changeover can occur at school or kindergarten, the father is to collect at the commencement of X and Y’s time with him and the mother is to collect at the conclusion of that time. It seems to me that a simple statement of that arrangement is to be preferred over a more complex one, so there will be an order to that effect.
However, a complexity in this case is that X and Y will be spending different times with their father for some years yet. It seems to me that the object should be to minimise the travelling for each child. So, for example, if X is staying with his father, the father and X should not be transporting Y. The mother should do the travelling in that circumstance. There will be orders to that effect.
Communication
The father’s proposal in relation to communication was:
24.That both parties do all such acts and things as necessary to ensure that when they are caring for the children for longer than a period of 2 days that the children shall communicate with the other parent via phone or video such as FaceTime or Skype between 6.30pm and 7.30pm.
The mother’s only proposals for X and Y to communicate with their other parent were in the context of overseas travel.
The usual order for communication is once or twice per week for half an hour. Once per week seems reasonable in all the circumstances of this case. To make it simple, there should be a requirement that X and Y communicate with the parent they are not with at the time by telephone, Skype or FaceTime, depending on what they can manage with minimal assistance, each Saturday between 5.30pm and 6pm.
Borderline personality disorder
The father proposed that:
11.The Mother do all such acts and things to consult with and follow the recommendations of such medical expert as recommended by Dr T for the treatment of Borderline Personality Disorder.
As the court has determined that the mother does not have borderline personality disorder, an order in the terms of this proposed order is unnecessary.
The parties agreed to an order that the orders could be provided to certain people, subject to any order about borderline personality disorder being redacted. As there will be no order about borderline personality disorder, that aspect of the proposed consent order will be omitted.
Travel
The parents were in dispute about who should hold X and Y’s passports. The father initially proposed that he hold X’s passports and the mother hold Y’s passports, but he withdrew that proposal. The father also proposed that X and Y’s passports be accessible to the other parent in the event of an emergency. The mother proposed that she should hold X and Y’s passports. I accept that proposal. It fits with the airport watch list order, which is discussed below. If there is an emergency, no doubt appropriate arrangements can be made on an urgent basis.
In relation to overseas travel, the father proposed that:
23.Each party be permitted to take the children on holiday overseas or interstate each year for such duration as the parties may mutually agree. In the event the parties can’t reach agreement once per calendar year, from Y aged 3 years the duration be 7 days. From X or Y aged 4 years, 14 days; from aged 5 years, 17 days; from aged 6 years, 21 days; and from aged 7 years in default up to 28 days subject to:-
(a)The dates of travel coinciding, as far as practicable, with the children’s school holidays.
(b)The travelling parent obtain the consent of the children’s school, if required, for the absence from school and ensuring that any prescribed homework tasks are completed.
(c)The travelling parent providing the other parent with as much notice of the proposed travel dates and destination(s) as possible (and in any event not less than 45 days written notice, save where reasonable in the event of a medical emergency, bereavement or such circumstances where the requirement of 45 days notice should be reduced).
(d)Obtaining the other parents written consent to the proposed travel provided however that the parent objecting to the proposed travel must make application to the Court to prevent the children travelling overseas.
(e)The travelling parent facilitating the children spending make up time with the other parent, at times nominated by him/her, for up to the duration of the time foregone.
(f)The travel, if overseas to countries that are signatory to the Hague Convention (unless otherwise agreed in writing).
(g)That the non-travelling parent shall respond to the abovementioned travel proposal in writing within 7 days and the consent shall not be unreasonably withheld.
(h)That both parties shall do all acts and things necessary to ensure that the children continue to hold valid passports and do all things in good time prior to their expiry to enable the issuing of new passports for the children.
…
(j)That in the event the parent who does not hold the children’s passport wishes to travel overseas they shall provide notice as required pursuant to this Order and the other parent shall provide the passports he/she holds for the children within 7 days of request by the other parent.
(k)That each party holds the children’s passports in such a place or with such a person to ensure the passports are accessible to the other parent within 24 hours in the event of a medical emergency or bereavement.
(l)That each parent be permitted to take the children interstate during their periods of care of the children with the travelling parent to provide the other parent with as much notice of the proposed travel as possible, and in any event at least 7 days written notice, unless otherwise agreed in writing.
(m)That in relation to any overseas travel the travelling parent will provide the other parent with, as soon as possible.
(i) Copy of the international transport itinerary.
(ii) Copy of the return transport tickets.
(iii) Provision of contact details to enable communication via audio and video means, e.g. ‘FaceTime or Skype’ to speak with the children whilst they are overseas at least every 3 days for a minimum of 30 minutes whilst they are travelling overseas.
(iv) That the travelling parent do all things necessary to ensure that the children speak with the other parent regularly during the overseas trip and it is their responsibility to ensure there is appropriate communication in place to allow the other parent to speak with the children.
The mother’s proposal in relation to overseas travel was:
19.That in the event either party wishes to take the children overseas during their time with the children, or at such other time as agreed between the parties in writing, the travelling party shall provide to the other 60 days’ notice of their travel with the children and such notice to include:
(a)A copy of the itinerary;
(b)The particulars of the child’s flight including airline carrier, departure and arrival times;
(c)A copy of the children’s return airline tickets;
(d)Particulars of the children’s accommodation;
(e)A contact number on which the children can be reached.
20.That in the event the Father travels overseas with the children, the Mother will provide the Father with the children’s Passports 48 hours prior to travel and the Father will return the children's Passports to the Mother within 48 hours of his return.
The father’s proposal is fundamentally inconsistent with Mr V’s recommendations. The father is seeking up to 28 days travel time, while Mr V recommended seven days with each parent over holidays. Obviously, the father wants the longer time because he comes from (country omitted), his family remains there, and he would like the children to be able to visit his home country and his family.
However, the father’s proposal is simply not supported by the expert evidence. The father did not press the issue of overseas travel in evidence or submissions. I see no reason to depart from Mr V’s recommendations. There will be orders substantially in the terms of the mother’s proposals for overseas travel. It is a fairly standard approach to this issue.
The father’s proposal for interstate travel was not actively opposed by the mother. There will be an order substantially as sought by the father on that topic.
Airport watch list
In addition, the mother proposed that there be an airport watch list order in the following terms:
23.That until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, MR HAGGART born on (omitted) 1970 and MS HAGGART (AKA MS HAGGART) born on (omitted) 1974, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children, X born on (omitted) 2013 and Y born on (omitted) 2016, from the Commonwealth of Australia for a period of 5 years;
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist for the said period, until the Court orders its removal, or with consent of all parties.
The parents did not give much attention to this proposal during the trial. Also, the mother’s proposal for the airport watch list order is somewhat inconsistent with her own proposals for overseas travel.
However, it seems to me to be in the best interests of X and Y in all the circumstances of this case. The father has no ties to Australia, other than X and Y. He does not have a job here, he does not have family here, he does not own a house here. He clearly has very strong ties to (country omitted). He has been accustomed to living and working in (country omitted) and the (country omitted). On his own case, he wants to travel overseas with the X and Y for up to four weeks at a time. I consider that, in these circumstances, the usual airport watch list order is appropriate, even though the (country omitted) is a signatory to the Hague Convention.
The consequence will be that the parents will need to seek the permission of the court if they have a specific proposal for overseas travel. This is obviously not ideal. However, if the parents are able to agree on travel, they can submit a minute of proposed consent orders to chambers, and, in all probability, avoid the costs of a trial on the issue.
Substantial attendance
The mother sought an order that the father be in substantial attendance as follows:
15.That the Father be in substantial attendance when the children are in his care (save for when they are at school or kindergarten), and if he is unable to care for the children during their time with him the Mother will care for the children.
The father opposed that order. I do not consider that it is in the best interests of X and Y. Obviously, it is in their best interests that both of their parents have jobs, earn money and demonstrate to the children that they contribute to society. An order for substantial attendance would impact on that. Substantial attendance was not proposed to be mutual. It was not recommended by Mr V. It is a backdoor way of reducing X and Y’s time with their father, or at least, time in their father’s household. There will be no such order.
I certify that the preceding two hundred and forty-seven (247) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 15 January 2018
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Injunction
-
Costs
-
Remedies
0
0
0