Hopler and Wardley

FAMILY COURT OF AUSTRALIA

HOPLER & WARDLEY

[2007] FamCA 676

FAMILY LAW – CHILDREN – Best interests – Protection from physical harm – Whether need to protect child from physical harm when spending time with mother – Order mother accommodate child in her parents’ home while child is spending overnight time with mother

Family Law Act 1975 (Cth) s 60CA, s 60CC, s60CC(2)(b)

Allied Pastoral Holdings Pty Ltd v The Commissioner for Taxation (1983) 1 NSWLR 1, p16
Browne and Dunn (1894) 6 The Reports 67
Goode & Goode (2006) FLC 93-286 at [64]
LC v TC (1998) FLC 92-803 (Full Court) at [35], [38]
Rice v Asplund (1979) 90-725
R and R: Children’s Wishes (2000) FLC 93-108 at [83]
W and W (2001) FLC 93-085 at [176]

APPLICANT:

MS HOPLER

RESPONDENT:

MR WARDLEY

INDEPENDENT CHILDREN’S LAWYER:

Mary-Ann HUTH

FILE NUMBER:

BRF

2350

2006

DATE DELIVERED:

11 July 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

8, 9, 10 and 11 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Galloway of Counsel with him Ms Harris of Counsel

SOLICITOR FOR THE APPLICANT:

Mr Jonathan Hulett,
Porter Hulett Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Alexander of Counsel

SOLICITOR FOR THE RESPONDENT:

Mr Jeff Bunning, Simonidis Shoebridge Lawyers

INDEPENDENT CHILDREN’S LAWYER’S

COUNSEL:

Mr Linklater-Steele of Counsel

INDEPENDENT CHILDREN’S LAWYER’S

SOLICITOR:

Ms Mary-Ann Huth,
Legal Aid Queensland

ORDERS

IT IS ORDERED

Parental responsibility

The parties have equal shared parental responsibility for the child, a daughter born in October 2004 (the child).

Child’s living arrangements

The child spend substantial and significant time with each of the parties as follows:
(a)with the mother:
(i)     on each alternate weekend from 3pm Friday until 5pm Sunday;
(ii)    in each week, from 9am Tuesday until 4pm Wednesday;
(iii)   if not otherwise with the mother, for 4 hours on each of Mother’s Day, the child’s birthday, the mother’s birthday and Christmas Day;
(iv)at such other times as the parties may agree
provided that for all overnight time the child spends with the mother she accommodate the child at the maternal grandparents’ home;
(b)with the father at all other times.
If on Father’s Day the child is spending time with the mother that time conclude at 12 noon on Father’s Day, and if on the child’s birthday, the father’s birthday or Christmas Day the child is spending time with the mother the child spend time with the father for 4 hours on each of those days.

Child’s holiday arrangements

The father may on one occasion in each year take the child on a holiday for up to 4 weeks (including an overseas holiday, dealt with more particularly below) provided that 30 days written notice is given to the mother (60 days for overseas holidays, dealt with below).
If the holiday destination is more than 200 kilometres from the mother’s residence:
(a)paragraph 2(a) of these orders is suspended for the duration of the holiday; and
(b)the parties must use their best endeavours for the child to have increased day time and/or overnight time with the mother before and after the holiday.

Changeover

For all changeovers at the commencement of time with the mother the child be collected from the front gate of the father’s home by the mother, a member of her immediate family or other person known to the child and at the conclusion of time with the mother the child be collected from the front gate of the mother’s home by the father, a member of his immediate family or other person known to the child.

Child’s telephone communications

When the child is able to use a telephone the parties must encourage and allow liberal telephone communication between the child and the other party at reasonable times.

Attendance at child’s day care and other facilities

The parties may attend and participate with the child in any day care, kindergarten, preparatory facility or school activities which, subject to the rules of those places, parents may attend and participate.

Non denigration

The parties must not denigrate each other to or in the presence or hearing of the child.

Information

The parties must keep each other informed in writing as to:
(a)his and her residential address, landline telephone number (if any) and mobile telephone number (if any);
(b)the name address and telephone number of any day care, kindergarten, preparatory facility or school which the child attends; and
(c)the name address and telephone number of any treating medical or health practitioner the child may attend.
The parties must notify each other as soon as possible of any serious accident or illness relating to the child.

Authorisation

The parties must authorise the child’s day care, kindergarten, preparatory facility or school, and any treating medical or health practitioners the child may attend, to provide to the other party such reports and other information as he/she may seek in writing from any such institution or practitioner, at his/her cost, provided that this order is sufficient authority for that purpose without further authorisation.

Parties’ communication

The parties must communicate with each other in relation to the child and arrangements for the child as may be appropriate by telephone, post, text message or email.

Child’s aunt’s wedding January 2008 – special event

The child spend additional time with the mother to attend the wedding of the child’s maternal aunt, Ms T, at the Whitsunday Islands between 18 and 21 January 2008 including the nights of 18, 19 and 20 January 2008 with changeover times and arrangements to coincide with the maternal grandparents’ and the mother’s travel arrangements.
There not be additional time with the father in relation to this special event.

Independent children’s lawyer

The independent children’s lawyer is discharged.

AND IT IS ORDERED BY CONSENT OF THE FATHER AND THE MOTHER (THE INDEPENDENT CHILDREN’S LAWYER NEITHER CONSENTING NOR OPPOSING)

Passport and travel

The mother sign all documents and do all things necessary for an Australian passport to issue in the child’s name.
If the mother should neglect or refuse to sign such documents, a Registrar of the Court may sign in the mother’s name and do all things necessary for the passport to issue.
The passport, when issued, be held by the mother’s solicitors, for safe keeping.
The parties must give to each other 60 days written notice of any intention to take the child out of Australia for a holiday and include in or with the notice:
(a)the full proposed itinerary including all air flight details and major destinations;
(b)a copy of the child’s air tickets showing proof of prepaid forward and return airfares.
The other party, within 14 days of the giving of such written notice, may file an application in the Court to restrain the travel, provided it is supported by an affidavit showing good reason why the travel should not occur.
If no such application for restraint is filed within 14 days of the giving of the written notice, the mother’s solicitors are to release the child’s passport to the party who has given the notice of intention to travel, to be used by that party only for the purpose of the travel referred to in the written notice.
The party to whom the child’s passport is released for the purpose of the notified travel must, within 2 business days of return to Australia, lodge the passport again with the mother’s solicitors for safe keeping.

AND IT IS FURTHER ORDERED

Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create, the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with these orders are set out in the Fact Sheet attached and those particulars are included in these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice O’Reilly delivered this day will for all publication and reporting purposes be referred to as Hopler & Wardley

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 2350 of 2006

MS HOPLER

Applicant

And

MR WARDLEY

Respondent

REASONS FOR JUDGMENT

Applications

These proceedings concern the parties’ daughter born in October 2004 (the child), now a little over 2½ years.
The mother seeks orders that the child live with her; the parties be jointly responsible for the long term care welfare and development of the child; the parties be solely responsible for the day to day care welfare and development of the child while with each; the child spend time with the father as agreed or as ordered by the Court; or alternatively the child live with the father and spend time with the mother at all reasonable times as agreed but in particular in each week from 9am Wednesday until 9am Thursday and from 9am Friday until 6pm Sunday; in relation to special days 1pm Christmas Day until 1pm Boxing Day in even numbered years and 1pm Christmas Eve until 1pm Christmas Day in odd numbered years; Mother’s Day 9am Friday until 6pm Sunday; the child’s birthday 1pm until 7pm; the mother’s birthday 9am until 6pm; there be make up time if the child should be unavailable at those times; and other orders relating to care of the child while with each party; changeovers; information; non denigration; and the non discussion of adult issues with or in the presence or hearing of the child.
The father seeks orders that the child live with him; he have sole parental responsibility for long term decisions concerning the care welfare and development of the child; and the child spend time with the mother as may be agreed between the parties but failing agreement 9am until 5pm on Saturday and Sunday on alternate weekends until the child is 3 years, and after that 9am Saturday until 5pm Sunday on alternate weekends.
The father also seeks orders in relation to the issue of an Australian passport for the child, including that the mother sign such documents as may be necessary for the issue of a passport in the child’s name but in the event she should refuse or neglect to sign such documents a Registrar of the Court be empowered to sign; and that the father be permitted to take the child on holidays when in his care, provided that he gives the mother 30 days notice of the travel arrangements, telephone contact numbers for himself and the child while overseas and copies of the relevant itineraries and return paid air tickets.
The mother said initially (oral evidence) that she would not sign an application for the child’s passport on the basis that “I do not want [the child] to go out of the country” because she was fearful that if a passport issued the father would not let her take the child out of the country by withholding the child’s passport and fearful that “She won’t come back” (meaning the child). The mother said that she may be agreeable to the issue of a passport for the child when she is 4 or 5 years, although she would still hold those same fears, expressing the view that a passport for the child should not issue “until she is able to speak and be heard”.
On the final day of the trial however (11 May 2007), Mr Galloway of Counsel, for the mother, and Mr Alexander of Counsel, for the father, proposed consent orders in relation to the child’s passport and travel arrangements which are reflected in the orders. Mr Linklater-Steele of Counsel, for the independent children’s lawyer, said that the independent children’s lawyer neither consented to nor opposed those orders.

Relevant background facts

The mother is 28 years and the father 44 years.
The child was born of a relationship between the parties which subsisted from about mid 2003 until January 2005. It was, it appears, a turbulent relationship, punctuated by breaks and some disturbing matters dealt with more fully below.
The mother is a single woman. She has not repartnered since the relationship with the father. She lives with her parents at R, which is south west of Brisbane. She is a student who in 2006 attended a Business course at TAFE and this year 2007 has transferred to a related course also at TAFE, which she hopes to complete in December 2007. Her present attendance time at TAFE is on Thursdays 1pm to 9pm and Fridays 9am to 4pm. She proposes in 2008 to commence a four year accounting course at University, which she anticipates may occupy about three days in each week. She does not propose to work while she is studying and, if the child should live with her, proposes to place her in child care for the three days in each week that she will attend her courses. The mother’s parents both work full time. The mother said that she has no immediate plans to establish her own residence away from her parents’ home, as presently she cannot afford to do so.
The father is a certified practising accountant holding a Bachelor of Business (Accounting and Communications), completed in 1980. He was an accountant for about 8-10 years until 2004, with an extensive employment history in insolvency including, most recently, with a major bank as a corporate credit manager, describing his work as “corporate turnaround workouts”. The father gave up his employment with the Bank (which he had held when he met the mother) in about August/September 2005 in order to care full time for the child, who has lived with him since January 2005. He intends, however, when these proceedings are finalised, either to recommence full time employment related to his specialty as a “corporate turnaround specialist” in the insolvency field, or as a bank manager, working full time on week days 9am until 5pm, or as a consultant. His preference, as he candidly said, is to return to work full time.
The father lives in the T area north of Brisbane.
He said that if the child should continue to live with him, the child would be cared for during his working hours, until she commences kindergarten, prep and Year 1, by a combination of Ms X, his fiancée, and child care.
The father and the mother, it appears, met while the father was working with a major bank in Brisbane, and the mother, who was then only about 24 years, was working in the same building as an administrative assistant with a firm of city solicitors (see report Dr H, psychiatrist, concerning the mother, 26 July 2005, page 1).
It appears that the father and his former spouse, to whom I will now refer, had been separated for a few months before the parties’ relationship commenced.
The father formerly had a relationship for about 22 years with his former spouse, commencing in early 1981. They commenced cohabitation in 1989 and married in February 1996. They separated in about mid 2003. The period of their cohabitation and marriage was thus about 14 years. They have two children, S, 10½ years and D, nearly 9 years. Those children live with the father’s former wife, and spend time with the father as agreed between the father and his ex-wife who have a platonic and amicable relationship. The former wife and the children also live in the T area.
The father has repartnered since his relationship with the mother. His partner is Ms X, who also lives in the T area. The father and Ms X’s relationship has subsisted for a little over one year. They are engaged to be married, planned for late 2007. They do not live together, but share two or three nights together in each week. Ms X has three children, L 22 years, N 11 years and K10 years. The father and Ms X do not plan to have children together. Ms X has a Science Diploma, and is a therapist. She is able to work part time. She said that if there is an order that the child live with the father, probably she would work part time, that is, on the days the child is with the mother.
It is common ground that the driving time between the parties’ respective homes is at least 1 hour each way or, depending on traffic, up to 1½ hours each way.

History concerning care of the child, including curial history

The parties separated after an incident concerning the child on 2 January 2005, when the child was about 8 weeks. There was attempted reconciliation for a few weeks until 21 January 2005, when the father decided firmly against reconciliation or any further attempted reconciliation with the mother.
Until the incident on 2 January 2005, for the first 8 weeks of the child’s life, the parties both cared for the child, at whose birth the father had been present.
As the result of the incident on 2 January 2005, the mother was detained in the Mental Health Unit at a major city hospital overnight, and the child was placed into care overnight, with the mother’s sister, Ms T.
On 3 January 2005, the child was placed into the father’s care.
Since then, the child has lived with the father.
On 3 January 2005, the mother was discharged from the Hospital, and since then has lived with her parents.
Between 3 January 2005 and 21 January 2005, the child had intermittent contact with the mother, including on 20 January 2005 at the W Contact Centre. However, the father did not permit further contact between the mother and the child at the W Contact Centre because of advice he received that unless he had a Court order in place for the child to live with him, if the mother should remove the child from the W Contact Centre, he would be unable to recover the child. See annexure A to the father’s affidavit.
On 11 April 2005, interim orders were made in the Federal Magistrates Court, by consent, that the child reside with the father and have contact with the mother, to be supervised by the maternal grandmother, on each Wednesday and Friday from about 2pm until about 6pm and on each Sunday from 1pm until 6pm; as well as other orders including as to changeover arrangements.
On 3 August 2006, again in the Federal Magistrates Court, the order in relation to the child spending time with the mother was varied to provide as may be agreed between the parties but failing agreement on each Wednesday and Friday from 2pm until 6pm, and on each Sunday from 1pm until 6pm, with an exception for Father’s Day but with a make up time provision for that day; as well as orders for changeover, information concerning the child, the use of a communication book and that the parties be at liberty to attend the child’s playgroup, day care or kindergarten and be involved in the child’s activities at those places, subject to any rules of those places about parents’ attendance.
On 6 November 2006, in this Court, the order in relation to the child spending time with the mother was further varied to provide as may be agreed between the parties but failing agreement until 1 February 2007 on each Wednesday and Sunday from 10am until 4pm; Christmas Day 2006 from 1pm until 7pm; and, commencing on 1 February 2007 on each Wednesday or some other day as agreed between the parties from 10am until 4pm and overnight from 2pm on each Saturday until 12 noon on each Sunday.
The introduction of overnight contact commencing once in each week from 1 February 2007 (Saturday 2pm until Sunday 12 noon) was subject to a further order that the mother accommodate the child during overnight periods at the home of the maternal grandmother.
The orders made included that, for changeover, the mother or a member of her immediate family collect the child from the front gate of the father’s home at the commencement of time with the mother and the father or a member of his immediate family collect the child from the front gate of the mother’s home upon the conclusion of time with the mother, as well as orders for non denigration, information concerning the child and other matters.
The changeover order to which I have referred was similar to that made on 3 August 2006, but expanded to include members of the parties’ immediate family rather than all changeovers being done by only the father or the mother. In the earlier order, 11 April 2005, the changeover arrangement required the maternal grandmother and the father to effect changeover.

It is significant to note that, between 11 April 2005 and 3 August 2006 the child’s time with the mother was day time only, three times weekly, two each for four hour periods and one five hour period, to be supervised by the maternal grandmother; between 3 August 2006 and 6 November 2006 the child’s time with the mother was again day time only, for the same periods, but not supervised; between 6 November 2006 and 1 February 2007 (leaving aside Christmas Day) the child’s time with the mother was again day time only, for two periods in each week each of six hours, not supervised; and from 1 February 2007 one day time period in each week for six hours and one overnight period in each week Saturday 2pm until Sunday 12 noon, again not supervised, but with the requirement that during the overnight periods the mother accommodate the child at the home of the maternal grandmother.

Incident on 2 January 2005

On 2 January 2005, there was an incident concerning the father, the mother and the child which has been the subject of much evidence, and led directly to the parties’ separation. It is convenient to deal, at the outset, with the parties’ differing versions of this event.
After the parties had attended a celebration of the maternal grandmother’s birthday at the maternal grandparents’ home at R, the parties were travelling from R to the father’s then residence at a northern Brisbane suburb. There was disharmony between the parties for the duration of their journey. The parties had exited the Inter City Bypass and were stationary at the lights at B, depicted in exs 1, 2 and 3. Their anticipated journey, when the lights changed, would have been to turn right from B, towards the father’s residence. The mother alleged that the father was using abusive, offensive and denigrating language to and about her. The father denies this, alleging that the mother had become angry with him saying nasty things but that he had responded “in a very calm manner throughout the entire drive” by saying to her words to the effect of “OK […]”. It is common ground however that the father, who had been in the driver’s seat, turned off the ignition at the lights at B, alighted the vehicle and left the mother and the child in the vehicle, the child being in the back seat in a baby capsule, and the mother seemingly also in the back seat. It is common ground also that the father then returned to the motor vehicle, apparently in a short time, ignited the engine and, when the lights changed, commenced the right hand turn. The father said the mother was clawing his face from the rear seat, and hitting his skull with clenched fists such that he could not see the road and drove thus to the closest driveway (on the left side of B) to halt the car. The driveway is depicted in ex 3.
The mother said the father then pulled her from the car and flung her to the road. She said she took the child from the car and wrapped her in a blanket, noticing that the father was making a call on his mobile telephone. She said she walked to a foot bridge (see exs 1, 2, 3 and 4). The mother said (mother’s affidavit):
18There were people on the foot bridge and I asked them to help me, telling them that the father was hurting me and that he had hurt me like this before. The father followed me, caught me up and grabbed me. I told him to leave me alone and I moved away and crossed the road. I then spoke to a person on the other side of the road and used his mobile telephone to ring my sister [Ms T].
19A few minutes later the police and an ambulance arrived. [The child] and I were put in the ambulance and checked by the ambulance officers. I was asked some questions by the police. I then went in the ambulance with [the child] to the hospital.
20I now understand that the father had reported that I dangled [the child] over the side of the bridge. I deny this. I had no intention of hurting myself or [the child] or placing us in any danger. I merely wanted to escape the father’s violence.
The father said (father’s affidavit):
80… The Mother moved between the two front passenger seats (over the top of [the child]) and was scratching me, attempting to bite me and seeking to retrieve the keys to the premises.
81Initially I attempted to restrain the Mother by holding her two wrists, pleading with her that she would hurt [the child]. After realising that the Mother was not calming down, I got out of the car and called the emergency number, asking for an ambulance. When connected, I advised them that the Mother was hysterical and that [the child] was also in the car with her. The Mother saw me make the call, got out of the front passenger seat (where she had moved to) ran at me and started attacking me. After being hit in the face and head several times, I grabbed the Mother in the collar area and pushed her away. The Mother threw herself to the pavement and started yelling to passing traffic “help, he’s hitting me”.
82I again called the emergency number seeking help. The Mother then went to the car, got [the child] out and proceeded to an adjacent bridge over [the] Creek. The Mother had placed both her feet on the bottom rung of the railing and had [the child] over the top of the railing, completely unprotected. The Mother was attempting to lift her right knee over the top of the railing. I ran to her and pleaded that this had nothing to do with our child and asked that she stop. I had my arms under [the child] thinking that if the Mother released her that I might be able to catch her. The Mother stated to me “I’m going, and I’m taking [the child] with me”. There were other people in the vicinity and they started running to assist when they saw what was happening.
83The Mother moved away from the railing and proceeded to walk/run directly into oncoming traffic, attempting to be hit by the vehicles. The Mother was not avoiding the traffic but was attempting to place herself and [the child] in front to (sic) the vehicles. [The child] was being handled very roughly and I could see her head and arms flinging from side to side. The other people herded the Mother to the other side of the road. Police arrived shortly after, followed by an ambulance. I was told the Mother would be placed overnight for psychiatric assessment and [the child] would be returned to me after she had been checked out. The police asked me to wait outside the hospital and [I] was advised by police subsequently that [the child] would be cared for overnight by [Ms T]. …
[bold emphasis added]
It is common ground that the “railing” part of the incident occurred at B at approximately the spot marked with a red dot on ex 3, and that her crossing of B Street with the child is roughly as depicted by the red dashes on ex 3, so that she arrived with the child at the spot depicted with a red X on ex 3 on the other side of B Street.
It is common ground also that B Street crosses a creek, shown in ex 3, which creek contained water.
There are two critical matters which I must determine.
The first is whether, while the mother was standing at the railing of the bridge (the railing being more clearly depicted in ex 4, although ex 4 is a picture of the railing on the opposite side of B Street to which the mother stood) she merely stood there, as she said in her oral evidence, “just gathering my thoughts”, with the child safely cradled in her arms, her arms resting on the top of the railing, and her feet not on the metal railing, but underneath it, or whether, as the father said in his oral evidence, initially had both feet on the bottom rung of the metal railing, then lifted her right knee up to or over the railing with her arms containing the child outstretched over the top of the railing and thus above the water in the creek saying “I’m going, and I’m taking [the child] with me”, as a threatened and/or intended suicidal and homicidal event.
The second is whether, when the mother crossed the first three lanes for traffic headed outbound or north (see ex 3) she did so in a manner which endangered (or further endangered) the child’s life.
As I have mentioned, as a result of this incident, the mother was detained overnight at the nearby Mental Health Unit of a major city hospital.
I will set out below, when dealing with s 60CC(2)(b), my findings in relation to this incident, in particular, as to the two critical matters to which I have referred.

Principles relevant to this application

Children’s best interests paramount

Pursuant to s 60CA of the Family Law Act 1975 (Cth), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.

Objects and principles underlying objects

Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children; and
·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Determining what is in a child’s best interests

Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.

Parental responsibility

Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.

Equal time/substantial and significant time

Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.
Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;
and:
·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and
·allows the child to be involved in occasions and events that are of special significance to the parent,
although regard may be had to other matters.
Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and
·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and
·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
·the impact that an arrangement of that kind would have on the child; and
·such other matters as the Court considers relevant.

Prior parenting plans

Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.

Other provisions

The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.

Weight

Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.

The evidence

It is not necessary that I refer to all of the evidence of the parties and their witnesses.
It ought not be inferred, if the evidence of a particular witness or part of the evidence of any witness is not referred to that I have not had proper regard to all of the evidence.
Largely, I will deal with the evidence which I consider to be the most relevant and helpful when dealing with the statutory matters which I must consider.
There are however several bodies of evidence to which I feel the need specifically to refer, which are set out below.

The mother’s and the father’s evidence

Much of the parties’ own evidence and the evidence of their witnesses related, as I observed during argument, to collateral issues, that is, matters which it is not necessary for me to determine to arrive at a conclusion as to the child’s best interests.
The mother relied, in addition to her own affidavit, on those of her mother, her father, Ms T (her sister), Ms A (her sister) and Dr V, her treating psychiatrist.
The father relied, in addition to his own affidavit, on those of his former wife, Ms X (his current partner), Mr Q (a former boyfriend of the mother), Ms L (a former flatmate of the father and the mother) and Ms U (a friend of the father and of his former wife).

1. Domestic violence

The mother’s and the father’s affidavits each contained allegations of violence and emotional abuse during their relationship. As the parties’ own relationship is now behind them, I do not consider it necessary to make specific findings in relation to the several allegations of violence during the relationship in order to reach a conclusion as to the child’s best interests now. It is sufficient to observe that in October 2004 domestic violence orders were made against each, for twelve months, on the non contested basis, and further that, overall, I prefer the father’s evidence as to the incidents of alleged domestic violence between the parties during the course of their relationship, for its probability and consistency, rather than the mother’s evidence, which was in parts contradictory and confusing.

2. Evidence of alleged suicide attempts by the mother between the child’s birth and 2 January 2005

It is prudent to refer to the evidence concerning some events which are alleged by the father to have occurred after the child’s birth and before the 2 January 2005 incident.
The father said (affidavit, par 66) that (seemingly late November or early December 2004) the mother told him she would kill herself, held a steak knife against herself and said she would jump off the upstairs balcony of the parties’ residence. The mother denied any suicide intention, and said the knife was a butter knife, not a steak knife, which in any event she discarded into a garden. She said she had not held the knife against herself but was “just holding it”; that she did not intend to harm herself “but him” (meaning the father); and that she did not say she would jump off the balcony.
The father said that about a week later the mother told him her problems were “all in her head”, that she could “not rid herself of the demons” and pleaded for his help which he said he would give. The mother denied this.
The following day (8 December 2004) the parties attended a Dr O. The father said that he attended the consultation with Dr O and during it the mother told Dr O that she was depressed and felt suicidal. The mother denies telling Dr O this. Dr O referred the mother to the P Mental Health Centre.
On 10 December 2004, after the mother had attended the P Mental Health Centre, the father said the mother told him she had been diagnosed with “a mild case of depression” and that Dr O would issue a prescription for antidepressants. The father said that the mother subsequently told him she had the prescription from Dr O and was taking the antidepressants, but that later he ascertained that she had not contacted Dr O again and was not taking antidepressants.
The father said (par 72) that on the evening of Christmas Day 2004, shortly before the 2 January 2005 incident, the mother, after having consumed “a full bottle of Asti during the course of the day”, during the evening became angry and “attempted suicide”, both with a knife and by attempting to throw herself off an upstairs balcony. The mother said she did not have a knife on that occasion and did not attempt to throw herself off a balcony.
The father said that again on 28 December 2004 (par 74) the mother attempted suicide by “taking a small knife and attempting to slash her wrists”. The mother denied she had “got a knife out” and denied attempting to slash her wrists.
Although the mother denied the details of these alleged incidents, and gave her own versions of them (largely in her oral evidence) she subsequently admitted (under cross examination by Mr Linklater-Steele, for the independent children’s lawyer) that she had told a medical practitioner that she had attempted suicide. When pressed, the mother said that the practitioner she had told was Dr V, her treating psychiatrist (who, according to Dr V’s report dated 30 November 2005, the mother first consulted on 10 February 2005), but then said that what she had told Dr V was not that she had attempted suicide but that she had made “an idle threat”. When pressed further, the mother said the “idle threat” had been the incident concerning the butter knife and that she had made the “idle threat” when she went onto the balcony.

3. Evidence of alleged statements by the mother of certain matters, some of which (if made) are untrue

The father said the mother told him:
(par 15)
·She had been raped when she was 13 years old and the rapist was in jail
·She had been raped by her father
·Her parents had been physically and verbally abusive to her
·Her father would violently punch her and other members of her family
·Her father held a knife at her throat
·She had been in counselling since age 14 years in order to assist her in dealing with her family life
(par 17)
·She had been hospitalised for meningicocle (father’s spelling) as a teenager
·She had been treated for ovarian cancer
·One of her ovaries had been removed
·A scar on her left lower stomach was the result of the operation to remove her ovary
(par 18)
·She had endometritis (father’s spelling)
(par 19)
·She had terminated a pregnancy while with one of her boyfriends, Mr Q, by repeatedly punching herself in the stomach
(pars 20-22)
·She had an abortion in October 2003.
The mother (affidavit, par 51) “vigorously denied” making such statements to the father or to anyone else, and denied that she had been raped or sexually abused, saying she was horrified by these allegations. She said she had a happy childhood and has a close and loving relationship with her parents and siblings and does not have any serious health problems. She said however (same paragraph) that she did have an abortion in October 2003.
The father said (pars 27-29) that after the child’s conception, an ultrasound test showed that the mother had both ovaries, the mother then asserting that she had “always been advised by her parents that the scar on her tummy resulted from the removal of an ovary” and “she could not comprehend why her parents would deceive her”.
Mr Q (a former boyfriend of the mother) said the mother had told him:
(pars 7-14)
·She was pregnant with his child (April 2002, shortly before he went overseas)
·She had miscarried (while Mr Q was overseas)
·She had miscarried because she had ovarian cancer and had only three months to live (which news caused Mr Q to return from overseas)
·She regularly saw ghosts and fairies and she had had a relationship with Bryan Adams.
Ms L (a former flatmate of the mother and the father) said the mother had told her:
(pars 9-13)
·She was adopted
·Her birth mother had been her school teacher
·Her birth mother had died and left an inheritance of houses and horses
·She had had ovarian cancer
·Her sister had major liver problems which may have been cancer
·She was a Certified Accountant
·She undertook university subjects while completing her senior year.
It is common ground that the content of some of the statements (if made, which the mother denies) is untrue. See ex 8, a letter dated 11 May 2007 (during the trial) from the independent children’s lawyer to Dr H, which provides:
The following statements are attributed to the mother, that is, the mother is claimed to have made the following statements. The mother denies that she made any of the statements. It is however agreed by both parties that the content of the statements are not true e.g. the mother is not adopted.
…
Please consider the following statements:
1.        That she was pregnant with Mr Q’s baby
2.        That she miscarried Mr Q’s baby
3.That she had ovarian cancer and had three months to live
4.That she was ghosts, fairies and she had a relationship with Bryan Adams
5.That her sister had major liver problems which may have been cancer
6.        That she was a Certified Accountant
7.That she undertook university subjects while completing high school
8.        That she was adopted
9.        That her birth mother was her teacher
10.That her birth mother had died and left her an inheritance of houses and horses.
Mr Galloway of Counsel, for the mother, cautioned that reliance ought not be placed on the affidavits of Mr Q and Ms L because the contents of their affidavits had not been put to the mother in cross examination. However, in my view, as I expressed during the trial, in a procedural system of trial on affidavit, provided that notice is given as to the use of specified affidavit material, the rule in Browne and Dunn (1894) 6 The Reports 67 is not breached, the object of the rule being to avoid surprise and to ensure that procedural fairness applies by each party having the opportunity to deny opposing evidence, or qualify it, or give a different version as to a subject matter, either by affidavit in response, or orally at the trial if there has not been opportunity to provide an affidavit in response. See, for example, Allied Pastoral Holdings Pty Ltd v The Commissioner for Taxation (1983) 1 NSWLR 1 at p16 per Hunt J; and more particularly LC v TC (1998) FLC 92-803 (Full Court) at pars 35, 38 (helpfully provided by Mr Alexander of Counsel, for the father).
The notes of the pretrial conference, dated 19 January 2007, at which the mother was represented by her solicitor Mr Hulett, show on the sheet headed “Trial Information” that notice was given to the mother’s solicitor of the father’s intention at the trial to rely on the affidavits of Mr Q and Ms L.
Moreover, I have obtained a short extract of the transcript 8 May 2007 2.34pm – 2.47pm, which shows the following during Mr Alexander’s cross examination of the mother:
Now, she [Ms [L]] says that – in her affidavit that on one particular day you informed her that you’d been adopted or that you were adopted and also that you had ovarian cancer. Now, these things aren’t true, are they? You haven’t been adopted? --- I’m not adopted, no. Both my parents have been adopted.
Right? --- I do not have ovarian cancer and I never have had ovarian cancer.
Right.
HER HONOUR: Just pardon me a moment please. All right. So you’ve said your parents were both adopted. Is that right? --- Yes.
And you’ve never had ovarian cancer? --- No.
And did you ever tell Ms [L] that you had? --- No.
And did you ever tell Ms [L] that you were adopted? --- No, the conversation was about my parents.
And what conversation, if any, did you have with her about your parents and ovarian cancer? --- I didn’t have a conversation with her about my parents and ovarian – I had a conversation with her about my parents being adopted and I had a conversation about my mother having cancer, but I don’t recall having a conversation about ovarian cancer.
What sort of cancer did your mother have? --- Breast cancer.
And would you have told Ms [L] what sort of cancer it was? --- Yes.
Mr Alexander.
MR ALEXANDER: Thank you, your Honour. [The mother], do you remember your ex-partner, Mr […] (sic) [Q] ? --- Yes.
Okay. Now, Mr [Q] says in his affidavit, paragraph 10, your Honour, that you also informed him that you had ovarian cancer and that you only had three months to live. He says that he loaned you $4000 in order to obtain the treatment but thankfully you never had ovarian cancer, did you? --- No, I’ve never had it. I didn’t tell him that I had it.
…
MR ALEXANDER: Thank you. So you say, [the mother], that you never informed Mr [Q] or Ms [L] that you had ovarian cancer? --- No.
Now, Ms [F] – [F], sorry, at paragraph 31 of her report, she says that the subpoenaed document she was briefed with provide evidence of your reports to a treating mental health professional about suffering and I quote:
Emotional, physical and sexual abuse during her childhood and that her father was violent towards her in association with alcohol abuse.
HER HONOUR: I’m sorry, paragraph?
MR ALEXANDER: Paragraph 31, your Honour.
HER HONOUR: Thank you.
MR ALEXANDER: Do you recall that paragraph in Ms [F’s] report? --- Yes, and they weren’t my words.
They weren’t your words? --- That was at [W] Mental Health and that was the father’s words.
Thus, it was put to the mother whether she had told Ms L that she was adopted and had had ovarian cancer, and the mother denied having told Ms L these two things; and it was also put to the mother whether she had told Mr Q that she had ovarian cancer, and the mother denied telling Mr Q that.
Mr Q (who was in Tasmania and attended by telephone) and Ms L struck me as careful and credible witnesses, with no motive to fabricate their affidavit evidence. Procedurally, by the method of trial on affidavit, the mother had the opportunity to answer their affidavit evidence, notice of it having been given. However, out of an abundance of caution, I will limit my findings to the matters squarely put to the mother in cross examination, namely whether she had told Ms L that she was adopted and had had ovarian cancer, and whether she had told Mr Q that she had ovarian cancer. I find, by preferring Mr Q’s and Ms L’s evidence on these two points that the mother did make those alleged statements and (as is common ground) that they were false. On the evidence, it would be open to me to make findings also that the mother made the statements set out in ex 8, which (it is common ground) if made would also have been false statements. However, as I have said, out of an abundance of caution I will not do so.
These matters, which plainly, standing alone, would fall into the category of collateral issues, and thus irrelevant matters, were explored during the trial only for the relevant purpose of being put to Dr H as to whether they may have impact on his assessment of the mother, as to which Dr H said that if the mother had said the things listed in ex 8 (see above) and they were untrue, that circumstance would “reinforce” but not otherwise affect his assessment of the mother (to which I will refer in more detail below). However, importantly, Dr H’s assessment of the mother, contained in his written reports, predated these matters being put to him (by way of ex 8) and thus are not assumptions underlying his reports or his assessment of the mother.
I will therefore, as is appropriate, ignore this body of evidence in its entirety (in this sub topic 3) including the two findings I have made, as not affecting Dr H’s assessment of the mother and as otherwise being collateral matters and as such wholly irrelevant to my determination of the child’s best interests.
I would add that, properly, Dr H agreed with Mr Galloway of Counsel, for the mother, in cross examination, that any proper analysis of the alleged statements would need to take into account their context, emphasis and demeanour; and later, under cross examination by Mr Alexander of Counsel, for the father, said that some of the mother’s statements (if made) eg having or having had ovarian cancer and having three months to live may amount to no more than attention seeking behaviour, or for affection or monetary gain, more likely to be manipulative than delusional, although, on the other hand “She may have believed it”.
I will therefore say no more about this topic, and would emphasise that the issue of the alleged statements, as well as my two findings, now will be ignored by me for all purposes.
Plainly, however, it has been necessary for me to refer to and deal with this particular body of evidence, limited to determining whether the matters raised are collateral only, and thus irrelevant, or may have laid a foundation for the expression of a further or different assessment by Dr H of the mother. As I have said, however, in the result that has not been the case.

4. Evidence concerning sexual abuse investigation of the child at the mother’s instigation

The mother said (affidavit, pars 32-35) that in early 2006 she noticed sexualised behaviour by the child (described in the mother’s affidavit) and that on 19 March 2006, while the child was being bathed by the mother, the child had “tried to insert the end of her toothbrush into her vagina” (the child then being about 16½ months).
Exhibit 9, p 76, is a letter dated 13 January 2006 by Dr IW, consultant paediatrician, reporting that physical examination of the child revealed mild tropical thrush of her perineum; that her genitalia otherwise was completely normal; there was no interruption to the crescentic hymen; and the anus was normal. Dr IW concluded that:
These normal findings do not negate or support the possibility of sexual interference and I have asked the mother to pass on the message to JAB and child safety that they need to investigate the matter further.
Exhibit 9, pp 77-86, is the Department of Child Safety investigation and assessment extract in relation to a notification on 10 March 2006, the notifier, according to the mother, being her sister Ms A, including (p 3 of the extract) that the child had severe nappy rash; the notifier had witnessed the mother “pull a pubic hair out of” the child’s vagina; the child’s vagina was “red raw inside” and on the outer “lips”; the child also had scratches on the “lips” of her vagina; the child is “terrified and upset when placed in a bath”, which terror and upset had never occurred before; and other matters. The notifier also advised the Department that in the past the mother has seen “hair” in the child’s nappy bag “which looks like pubic hair” and that the nappy bag had been taken to the JAB who “could not do anything” because they could not determine whether it was pubic hair and there was no evidence of semen on the child’s nappies.
The details of the Department’s investigation are as set out at pp 4-8 of the extract, concluding with the assessment (p 8) that there was “no evidence at this time to suggest that [the father] has behaved inappropriately toward his child” and that “the child underwent paediatric assessment to alleviate these concerns”.
Mr Galloway of Counsel, for the mother, emphasised, in his final submissions, that the mother did not seek findings in relation to sexual abuse, and that this was not part of the mother’s case but that the mother had included her concerns in her material merely as part of the narrative.
I have included reference therefore to this body of evidence because it was raised in the mother’s trial affidavit thus necessitating my dealing with it. However, because, on the state of the evidence, there does not appear to me to be material upon which any finding of or relating to sexual abuse could be made, I will not again refer to it.

5. Other concerns of the father

The father said (affidavit, pars 90 and 91) that on 15 January 2005 the mother’s thinking “appeared scattered” and that later in the day her voice “changed to that of a child”. He said that the mother had previously used a child like voice when being affectionate “however the child’s voice this time sounded real”. He said he asked the mother her name, to which she responded “I’m [the mother]”; and he asked her how old she was and she said “I’m young”, “very young”.
However, I will not refer again to these or such matters on the basis that the mother has been assessed by both her treating psychiatrist, Dr V, and the single expert psychiatrist arranged by the independent children’s lawyer, Dr H, so that it would be inappropriate for me further to consider these matters without the benefit of expert evidence specifically directed to them.
The father’s evidence referred also to attendances by the mother on 2 January 2005 at a major city hospital and on subsequent occasions at the W Mental Health Service, as well as the Department’s investigation into the incident on 2 January 2005 (see ex 9, pp 1-70). There was much agitation as to whether the mother or the father had provided certain of the information contained in these extracts.
However, it is not necessary for me to make findings as to “who said what” to the personnel at the major city hospital, W Mental Health Service or the Department in order for me to determine the only matter which I must determine, namely the child’s best interests. Accordingly, I will not refer again to this body of the evidence.

6. Other concerns of the mother

The mother alleged that throughout the relationship the father “told several people there was something wrong with my mental health”, and that he said these things “in order to undermine my self confidence, control me and isolate me from others” (affidavit, par 10).
The mother’s case is that all along, in the father’s hands, she has been the victim of domestic violence and of a very controlling man; that she has never self harmed; and would never harm the child.

7. Dr V’s evidence

Dr V, the mother’s treating psychiatrist, saw the mother on several occasions (about 12) in the treating role between February and November 2005, the particular dates being as set out in Dr V’s report. Dr V said in her oral evidence that she saw the mother again on two occasions during 2006 related to the litigation (in particular, in relation to the preparation of her addendum report to which I will refer below); and once in late 2006 “because she was under stress in one of her relationships”.
In her report dated 30 November 2005, Dr V said, as to the mother’s mental state examination:
On mental state examination at her last review she presented as a young woman of Caucasian appearance with long red hair. She was neatly dressed and groomed. There was no evidence of psychomotor disturbance. Rapport was good, with good eye contact maintained throughout the interview. She described her mood as good and affect was normal in range and reactivity. Speech was normal in fluency, prosody and quality. There were no abnormalities evident in thought form, stream or possession. There was no evidence of any abnormalities such as overvalued ideas or delusions in her thought contents. No perceptual disturbance was described or observed. Cognition was not formally tested, but there were no abnormalities observed regarding orientation, concentration and memory. Her insight into her current situation is good and her judgement (sic), based on her description of daily decision making, appears to be sound.
After reference to information provided to her by Ms Y, the mother’s case manager at the W Mental Health Service, and the referral letter from Dr I, psychiatry registrar at the W Mental Health Service, which letter included that there was “no evidence of a pervasive mood disorder” and that the “underlying difficulty appeared to be her borderline personality structure with crises precipitated by issues revolving around attachment and trust”, Dr V referred to information the mother had given her, including that she had never had thoughts of harming herself or others; her denial that she had threatened the child’s safety; that she had “described being the target of domestic violence, commencing in early 2004”; and that during appointments at the W Mental Health Service the father, not she, had “answered all questions and provided information” despite the mother’s belief that the information provided by the father was incorrect.
Dr V said that her provisional diagnosis was of an “Adjustment Disorder with depressed mood”, and that as at late 2005 the mother’s prognosis was good, supported by the “rapid resolution of her depressed mood, despite the ongoing stressor of the court case regarding access to her daughter”.
Dr V referred to the mother’s treatment as including a “supportive psychotherapeutic approach”, and medication on three different antidepressants between January and March 2005, all of which were ceased after short periods of time “due to side effects”. Dr V continued that “given her poor tolerance of antidepressants no further anti depressant was commenced in March for her remaining symptoms” and that “despite this, her mood symptoms continued to resolve”.
Dr V referred to the mother’s current diagnosis as there being “no longer an Axis I disorder present”, and that the “diagnosis of Adjustment Disorder with depressed mood is now considered to be in remission, and has been so since April 2005”, adding “there is no evidence of any longstanding difficulties that would be consistent with the diagnosis of an Axis II disorder, such as a personality disorder”.

After referring to other matters, Dr V said that she had not formally assessed the mother’s capacity to care for the child, adding that in her capacity as the mother’s treating psychiatrist it would be “inappropriate” for her to make such an assessment (that is, a formal assessment). However Dr V, nonetheless, made observations (seemingly by way of informal assessment) as to certain matters which she said indicated to her that the mother “is capable of identifying and responding to her child’s needs”. In this context, Dr V observed the mother with the child on one occasion during a 50 minute appointment in August 2005 and said, in this context, that in her assessment the mother “has the capacity to care for her child in an appropriate manner”.
Dr V said that she disagreed with Dr I’s statement (referred to above) that the “underlying difficulty appeared to be her borderline personality structure with crises precipitated by issues revolving around attachment and trust”, that based upon her assessment she did not believe that the mother demonstrated any traits of a personality disorder and that (p 5):
… Unfortunately in the last two relationships she has been subjected to domestic violence of an emotional and physical nature.
As to the incident on 2 January 2005, Dr V said (p 5) that if the allegations regarding that incident were true “then obviously there would be reason for concern”, but added “as mentioned above, [the mother] has denied these allegations”, adding that if the mother had threatened the child’s safety “in that way”, then “there would have been other elements in her past history and current presentation that would support a diagnosis of either a DSM-IV-TR axis I or axis II disorder”.
Dr V concluded (p 5):
Her history and presentation is consistent with that of someone who has become a victim of domestic violence in her last two relationships. Should she regain custody of her daughter, and then enter and stay in another relationship where domestic violence occurs, there would be some risk to her daughter’s safety. [The mother] has taken steps to learn more regarding domestic violence and now has a greater understanding of how this occurred, particularly in her last relationship. [The mother] has also been working on self development, including communication ad assertiveness skills. She also now has established professional supports in addition to her pre-existing family supports. Given all these factors, I believe that in the future [the mother] would be less likely to stay in another relationship where domestic violence was occurring.
In summary, I do not believe that [the mother] has any past or present mental health issues that lead to her being a risk to herself or others, or that would impact on her ability to care for her daughter.
Dr V provided an addendum report dated 15 June 2006, after reading Dr H’s report (to which I will refer below), after conferring with Dr H, and having regard also to further documents from the W Mental Health Service described in the addendum report. Dr V said in the addendum report, after referring to certain matters:
[Dr H] and I have also discussed our opinions on the presence of any personality instability. We agree that there is no evidence of a personality disorder. I disagree with him regarding the presence of personality vulnerabilities, as I have not seen any evidence of these during the time I have been treating [the mother], despite the presence of ongoing stressors in her life.
We also discussed the information regarding events on 2 Jan 2005. As mentioned in my original treating doctor’s report, [the mother] denies the allegations made against her regarding events on that day.
In summary, after reviewing [Dr H’s] report and conferring with him regarding his and my reports, I do not wish to amend the recommendations made in my treating doctor’s report dated 30 November 2005.
In her oral evidence and cross examination, Dr V said that whilst her treatment of the mother had concluded, she had “left it open” for the mother to contact her in the future if she needed to, and agreed that her treatment of the mother had ended because “there was nothing left to fix”.
Dr V said that the matters in Ms L’s affidavit and Mr Q’s affidavit, if true, would not affect her diagnosis, opinions or reports.
She said however that if the mother’s version as to the 2 January 2005 incident had not been true, and that on that occasion the mother had placed the child in danger, her evaluation of the mother’s mental health would be the same, but her evaluation of whether there may be risk to the child would be different.
Dr V said that although she placed “quite a lot” on the history given her by the patient, in her ultimate evaluation she took into account also presentation and other matters.
Dr V said that the mother had identified to her that the significant stressor in relation to her adjustment disorder was “the removal of [the child] from her custody”, that is, after the incident on 2 January 2005.
Dr V agreed that she had had no discussions with the father.

The independent children’s lawyer’s evidence

The independent children’s lawyer relied upon the reports and oral evidence of Dr H, psychiatrist, and Ms F, social worker.
Dr H provided separate reports in relation to the mother and the father, each dated 26 June 2005.
In relation to the mother, Dr H said (p 1):
Her account of the events of January 2005 was that she walked across the road holding [the child], that there was no attempt at self harm on her part and that she had been “flung out of the car by [the father] on to the road”.
Dr H set out (pp 1-6) other details of the history he took from the mother.
He said as to the mother’s mental state examination (p 7):
She was a casually dressed lady who looked her stated years. Grooming and hygiene were intact. She had two tattoos of butterflies but no other distinguishing bodily markings. She was bright and quite vivacious during the interview and certainly there was no significant evidence of any mood disturbance. Her behaviour was appropriate, there was no evidence of psychomotor agitation or retardation. She maintained good eye contact, was cooperative, mildly anxious but not hypervigilant. Speech was of normal rate, rhythm and syntax. There was no disorder of the form, stream or possession of her thought. Thought content was unremarkable, her affect was reactive and mood euthymic. No perceptual disturbances were described. I thought her insight was significantly lacking but her cognition appeared intact.
As to his summary and assessment, Dr H said (pp 7-8):
This lady does not currently have an Axis I disorder. However, the history that she provides is to say the least, replete with problems. The notes from the [W] Mental Health Service dated 12.1.05 indicate a history of three previous attempts at deliberate self harm, mainly “attempts to cut herself”. They note a history of unstable relationships, an ambivalent relationship with her partner as well as “dissociating symptoms” and she “used to assault partner without her knowledge, like she is in a trance”. This assessment goes on to note that she had seen a counsellor before for anger management because of violent temper problems and she was noted to have borderline paranoid and antisocial personality traits. This assessment goes on to note that she had a prejudicial upbringing, that the father was an alcoholic, that emotional abuse was also an issue whereas in my interview with her, all of these difficulties were, to say the least, glossed over.
In addition her recounting of the incident of the 2^nd January in the light of the ancillary information is, to say the least, disturbing. This lady does not appear to have accepted the ramifications of her behaviour on that occasion, continues to blame [the father] for all of the problems and it would appear that this was precisely the situation confronted by the Department of Family Services in their assessment. It would not appear that with experience and time, she has changed.
Whilst this lady does not currently have an Axis I psychiatric disorder, I think there is significant evidence to suggest that she does have underlying personality instability in the borderline domain and that her history is frankly lacking in a degree of veracity. She has apparently had a good deal of psychiatric and psychological treatment recently but there is nothing from these sources in the notes and I would be concerned about boundary issues.
I would be concerned about the mother’s behaviour in all of this and in my view this does impact upon her ability to parent [the child]. Supervised contact appears to have gone well and clearly as [the child] gets older things will change.
[bold emphasis added]
Dr H provided an addendum report dated 1 August 2006 after reading Dr V’s report and a telephone discussion with her as to the mother’s treatment. Dr H said in his addendum report:
It would certainly appear that at the time she initially saw [the mother], [Dr V] was of the view that she was suffering from significant depressive symptoms and made a diagnosis of an adjustment disorder with a depressed mood. She had not had access to some of the material that I had seen and the concerns that I raised in my previous report remain. I remain of the view that this lady, at the time I saw her, did not have an Axis I psychiatric disorder though I was concerned and indeed remain concerned, about her underlying personality stability.
I think that it is to [the mother’s] credit that she has commenced and indeed maintained a relationship with [Dr V] over this period of time and clearly she has been able to utilise the sophisticated psychiatric support which has been offered to her during this time. This would appear to have led to a level of containment and indeed improvement in [the mother’s] functioning over a period of time and as I understand it, she is having ongoing contact with her daughter.
Whilst [the mother] is undoubtedly stressed over the ongoing court case the litigation difficulties, there is little doubt from [Dr V’s] report that her condition has stabilised during this time and that the previously described difficulties have settled, both with a combination of antidepressant medication together with supportive psychotherapy.
In these circumstances and because of [the mother’s] improvement, it would appear appropriate that her access slowly increase though given the difficulties that led to her initial presentation to the Mental Health Services, my view remains that this should be monitored and graduated. I see no reason why in the course of this process, this lady could not have unsupervised access. …
[bold emphasis added]
In his oral evidence and cross examination Dr H said as to ex 8 that if the mother had made the statements set out in it, and they were untrue, that would “reinforce” but not otherwise affect the views expressed in his report and addendum report.
Dr H said that, as to the mother’s present functioning, he would defer to Dr V’s assessment of the mother as her treating practitioner, adding “I’d have to, I have not seen her” (meaning, in the treating role).
He agreed that his report in relation to the mother was compiled on the basis of “one interview”, but that he has “worked in the mental health industry for a long time”. He said “You don’t get entangled in the mental health system unless there are issues, difficulties”, and the fact that the mother has seen Dr V “over a period of time” indicates that the mother has had difficulties, and sought assistance, adding that “there seems to be a pattern of problems over time”, according to the various ancillary information to which he referred in his principal report.
Dr H said further, in relation to ex 8, that statement no 4 (ghosts/fairies/relationship with Bryan Adams) may indicate a “loss of touch with reality”, but that repeated disclosures by the mother of having or having had ovarian cancer and of having three months to live may amount to no more than attention seeking behaviour, or statements for affection of monetary gain, more likely to be manipulative than delusional, although, on the other hand, the mother “may have believed it”.
There was discussion as to whether, if the mother should become stressed and develop “difficulties” again, future treatment or intervention, such as Dr V’s past treatment and intervention, would provide a “safety net” for the mother in the context of safety of the child in the mother’s care, and in particular whether future treatment or intervention, and in particular prognosis as to the mother’s ability to safely care for the child, may be affected by what was put as the mother’s “continuing inability to accept what happened on the bridge” (assuming, for relevant purposes, that the mother’s version put to Dr V, was untrue). Dr H responded to the effect “It comes back to insight” and said, in that context, that whether any future intervention was by Dr V, or any other treating psychiatrist, to the effect “All they have to go on is what she tells them – whether what she tells them is true”.
In relation to ex 8, statement nos 1 and 2 (that the mother had been pregnant with Mr Q’s baby and that she has miscarried Mr Q’s baby), Dr H said that if these statements were untrue, in his view they were consistent with his assessment of the mother having “underlying personality instability in the borderline domain”, and that these statements (if made) may have been “a frantic effort to avoid real or imagined abandonment”.
Dr H’s report in relation to the father provided, as to mental state examination (p 7):
He was a well dressed, appropriately attired man who looked his stated years. Grooming and hygiene were intact. He was balding and composed throughout the interview. He certainly appeared during the interview, to be uncomfortable with the process. His behaviour was otherwise appropriate and there was no evidence of psychomotor agitation or retardation. Eye contact was good, he was cooperative, moderately anxious by not hypervigilant. Speech was of normal rate, rhythm and syntax. There is no disorder of the form, stream of possession of his thought. Thought content reflected apprehensiveness rather than any mood disorder. His affect was reactive and mood euthymic. No perceptual disturbances are described. I thought that he had some insight and his cognition was intact.
In his assessment of the father, Dr H said:
This 42 year old man does not have any evidence of an Axis I psychiatric disorder. I suspect that he has had considerable difficulties coming to terms with this situation and may well have suffered from depressive symptoms previously.
It may well be that he developed a depressive illness after the breakup of his marriage and certainly he would appear to have gone through a significant period of self doubt.
He seems to have entered a relationship with [the mother] which he found increasingly difficult and certainly after she became pregnant, one from which he could not extract himself.
He appears, in keeping with his personality traits, to have endeavoured to intellectualise the difficulties he has had, though at the same time, to act to appropriately set boundaries.
In cross examination, Dr H was asked as to an observation of the father in his report (pp 2-3) that the father had “done some research but has also sought [to] intellectualise a good many of the difficulties he has faced” in relation to behaviours of the mother in their relationship which he found difficult to understand. Dr H responded to the effect that, as a banker, the father is “fairly obsessional”, and in Dr H’s view, had been “trying to work out what had happened and to make some sense of it”.

Ms F

Ms F, social worker, provided a family report dated 5 January 2007.
It is not necessary for me to set out those paragraphs of the report dealing with Ms F’s interviews with the parties, the child, and other significant persons (in particular, the maternal grandparents, and Ms X), nor her observations as to the child and her interactions with the parties (pars 3-79) save for the following three paragraphs, the first two of which are important in relation to positive aspects of the child’s relationship with the mother, and the third an important observation generally as to the child’s present needs and best interests:
63     During the observation session it was apparent that [the mother] was responsible for caring for [the child] and the maternal grandparents remained on the periphery. [The mother] had brought familiar toys for [the child] and began reading a book that [the child] recognised and had chosen for herself. [The child] appeared to enjoy this story and smiled with [the mother] in recognition of this familiarity shared between them. Following this initial playful activity between [the child] and her mother, [the mother] then proceeded to change [the child’s] nappy. Whilst changing [the child] she commented to the maternal grandmother, “She hasn’t been cleaned properly and there’s a hair.” In my view [the mother’s] behaviour in this situation seemed an attempt to verify her assertions she has made about [the father’s] inappropriate care of [the child]. [The child] was lying quietly during this time.
65     Following this observation time and in discussion with [the mother] of [the child’s] needs, she demonstrated good insight into her understanding of [the child’s] personality and developmental stage. She commented that [her daughter] was a strong willed child, typically happy and that she responds positively to [her mother] praising her. She agrees that [the child] will benefit from some interaction with other children such as through kindy and commented that she uses educational toys with [the child] to facilitate her language skills and is attempting to toilet train her and has recorded this in the communication book.
68     In summary, [the child] appears to have a level of functioning appropriate to her developmental age. Children of [the daughter’s] age need a continuing focus on predictability, routine and structure and need to be free from direct exposure to parental conflict. At this stage children still need a primary home but are able to manage periods of overnight time away from a primary attachment figure. Predictably at [the child’s] age frequent time of a shorter duration is preferable to longer periods of contact marked by substantial intervals. Preferably, progression in arrangements should be made in small incremental steps.
[bold emphasis added]
Ms F provided a summary of her observations (pars 80-90) as to which I will set out only two paragraphs:
84 In my assessment [the mother] demonstrated that she has a good bond with [the child] and is genuinely committed to and capable of meeting her needs. In my opinion the concerns in relation to [the mother’s] mental health problems have been resolved through treatment and are not factors which impact on her capacity as a parent. In my view it is not necessary to continue with a cautious approach to [the child’s] time with [the mother]. In my opinion [the father’s] ongoing anxieties and the concerns expressed during this assessment, whilst arguably understandable in the past, demonstrate some rigidity in his thinking. In this regard it would be particularly helpful if [the father] could give his support to [the child’s] relationship with [the mother], despite his own feelings towards her.
88 In my assessment there is evidence that the co-parenting relationship between [the father] and [the mother] is limited due to communication difficulties and the practical issues of travelling distance between the parents’ homes. Additionally, [the father] indicates that he is strongly opposed to an equal shared care arrangement. In my view, such an arrangement would be disruptive to [the child] given her young are, and based on the past relationship problems and conflicts which continue to contaminate the parents’ relationship, I would not support an equal shared parenting plan. However, in my opinion given [the child’s] developmental stage, it is important to support security in her attachment with [the mother] and this could be achieved through the current progression to weekly overnight time and for a maximum of two days each week.
[bold emphasis added]

The mother doubts the father’s willingness and ability to encourage a close and continuing relationship between the child and her, and believes that the father denigrates her to the child.
However, the mother’s belief does not seem to me to be supported by the evidence. Further, the father’s willingness and ability to facilitate and encourage a close and continuing relationship between the child and the mother is best demonstrated by his compliance with all orders which have been made in the case, including extensive travel between the parties’ homes, 1 to 1½ hours each way.
The father has a reservation as to the child spending increased time with the mother. However, in my view, his reservation is genuinely based, because of fears that he has as to the mother’s ability to keep the child free from harm, rather than demonstrating an unwillingness to facilitate and encourage a close and continuing relationship between the child and the mother.

The likely effect of change

Ms F, the social worker engaged by the independent children’s lawyer, said, which I accept, that the child needs a “primary home” and to be in the primary care of one of the parties.
Ms F said also, which I accept, that a change now to the child living with the mother would amount to a “major disruption”.

Practical difficulty

The parties live north and south west of Brisbane respectively, the mother with her parents at R, in the W Shire south west of Brisbane, and the father in T, north of Brisbane.
On the evidence, it appears that this is a drive of 1 hour each way or depending on traffic up to 1 to 1½ hours each way or 2 to 3 hours round trip.
This is a significant practical difficulty.
However, to date the parties have succeeded in ensuring that the travel occurs, and there is no reason to think that each would not continue to ensure that the necessary travel takes place.
In recent times, changeover has occurred at the mother’s (maternal grandparents’) residence at R, and at the father’s residence (T).
In written submissions, the independent children’s lawyer submitted that possibly McDonald’s at M may be a convenient changeover venue, being one with access to all major arterial roads. However, it seems to me that whether the changeover venue is one of the parties’ residences, or a mid point, the travelling time for the child would be the same. Further, the child is not accustomed to changeover at a public venue, as opposed to changeover at the parties’ homes.
Mr Alexander of Counsel, for the father, submitted that the distance is too great for the child to travel with any “great regularity”. However, it appears that to date, at least, the child has managed two to three changeovers weekly, most recently two changeovers weekly.

The parties’ and others’ capacities to provide for the child’s needs, including emotional and intellectual needs

Having regard to the child’s age, largely this factor is directed to her practical needs, there being little evidence to date of her emotional and intellectual needs.
On the evidence, there is no reason to think that either party has a deficient capacity to provide for the child’s practical needs, meaning her meals, bathing, play and stimulation. Ms F, as I have emphasised, said that the mother demonstrated good insight into her understanding of the child’s personality and developmental stage.
The child has been primarily in the father’s care for over two years, since she was 8 weeks old. The mother referred in her affidavit material to the child being presented to her, for time spent with her, as unwashed, with head lice, damaged toe nails and other matters that met with her criticism. However, these are matters which are capable of remedy.
The father’s former wife, described him as a “nurturing father”.
No challenge was made to Ms X’s capacity to provide for the needs of the child, nor indeed to the maternal grandparents’ capacity to provide for the needs of the child.

Child’s maturity, sex, lifestyle and background

The child is female, a little over 2½ years.

The parties’ attitude to the child and to the responsibilities of parenthood

It seems to me that these matters have been sufficiently canvassed above.

Family violence or family violence orders

I have referred to these matters above.

Order least likely to lead to further proceedings

The child is a little over 2½ years. Having regard to the parenting history to date, and the particular matters discussed, this is not a predictable matter.

Conclusion as to whether equal time is in the child’s best interests

Having considered positively whether an equal time order would be in the child’s best interests, I have determined that it would not, primarily because of my acceptance of Ms F’s evidence that the child should be in the primary care of one of the parties.

Reasonable practicability

Having regard to my conclusion that an equal time order would not be in the child’s best interests, it is not necessary for me to consider whether an equal time order would be reasonably practicable.

Substantial and significant time

Section 65DAA(2) of the Act provides that if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child, but I do not make an equal time order then I must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and reasonable practicable, and if it is consider making an order for the child to spend substantial and significant time with each of the child’s parents.
I have referred above to Goode & Goode (par 64) as to the need to consider positively the making of an equal time order in relation to s 65DAA(1). The Full Court went on to say that the same applies to s 65DAA(2).
Thus, it is incumbent upon me to consider whether the child spending substantial and significant time with each of the parents would be in her best interests, approaching that consideration positively.
Section 65DAA(3) provides that, for the purposes of s 65DAA(2), a child will be taken to spend “substantial and significant time” with a parent only if the time the child spends with the parent includes both days that fall on weekends and holidays, and days that do not fall on weekends or holidays; the time the child spends with the parent allows the parent to be involved in the child’s daily routine and the occasions and events that are of particular significance to the child; and the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In his final submissions Mr Linklater-Steele of Counsel, for the independent children’s lawyer, proposed that the child spend time with the mother for 2 one night “blocks” in each week, being 9am Monday overnight to 4pm Tuesday, and 3pm Friday overnight to 12noon Saturday, being two nights in each week, or four nights in each fortnight, which is consistent with Ms F’s recommendations in her report, and her oral evidence, that the child “could cope” with that time and those intervals. Mr Linklater-Steele noted that those intervals would not interfere with the mother’s TAFE course attendances on Thursdays 1pm-9pm and Fridays 9am-4pm, particularly if changeovers, or some of them, may be managed by the maternal grandparents and/or Ms X.
Mr Linklater-Steele submitted that the child’s best interests would be served by spending time with the father at all other times.
Mr Alexander of Counsel, for the father, submitted that the child’s best interests would be served by living with the father and spending time with the mother on alternate weekends from 3pm Friday until 5pm Sunday, to facilitate “full weekends”, with one overnight with the mother in each week, so as to amount to four nights with the mother in each fortnight, as recommended by Ms F, but which would allow “one longer period” in each fortnight which the child would spend with the mother, at the same time allowing the father and Ms X the ability to have, on alternate weekends, free time for themselves without the child, being a full weekend each alternate weekend.
Mr Galloway of Counsel, for the mother, submitted that, if there should not be an order that the child live with the mother, which was his primary submission, nor that there be an equal time order for the reasons outlined by Ms F, then the appropriate outcome would be for the child to spend substantial and significant time with each of the parties which, in relation to the mother, he submitted would include at least whole alternate weekends and at least one midweek overnight in each week, but that to maximise the child’s day time with the mother according to her course attendance timetable most appropriately the overnight midweek time once per week would be from 9am on one week day until 4pm on the next week day so that the child in effect would spend two full day times with the mother in each week although it may amount to only one overnight time in each week. Mr Galloway inferred by his phrase “at least” that if there is not to be an equal time order the child’s time with the mother nonetheless should be the maximum realistically possible, having regard to the distances between the parties’ residences, and the need for the child to not have more travel time than, according to Ms F’s evidence, the child could “cope with”

Reasonable practicability

Section 65DAA(5) sets out the matters which I must consider in determining reasonable practicability, whether for an equal time order or a substantial and significant time order.
In relation to these matters, it is significant that the child’s parents live a considerable distance from each other, as I have mentioned.
On the evidence, the parties’ current and future capacity to implement a substantial and significant time arrangement is favourable although their current and future capacity to communicate with each other and to resolve difficulties that might arise in implementing a substantial and significant time arrangement is doubtful.
The impact of an arrangement on the child of a substantial and significant time order has not been the subject of specific evidence other than that given by Ms F, notably that the child could “cope with” the proposal put to her by Mr Linklater-Steele of Counsel, of 2 one night “blocks” in each week.

Conclusion as to whether substantial and significant time is in the child’s best interests

Having regard to all of the evidence, I have no hesitation in concluding that the child’s best interests would be served by spending, as recommended by Ms F, four nights in each fortnight with the mother, and all other times with the father.
I am persuaded by the submissions of Mr Alexander of Counsel, for the father, and Mr Galloway of Counsel, for the mother, that the substantial and significant time the child should spend with the mother should include full alternate weekends, which in my view should be from 3pm Friday until 5pm Sunday, and that the child should also spend with the mother one overnight in each week. I am persuaded by Mr Galloway’s submissions that it would be in the child’s best interests to maximise the child’s time with the mother on the week days so that for the overnight midweek time that should commence at 9am on the first day until 4pm on the second day. However, as there will be full alternate weekends with the mother, this has the effect that it would not be appropriate for the child’s overnight block in each week to occur on a Monday overnight to Tuesday, but would be better on either Tuesday overnight to Wednesday or Wednesday overnight to Thursday. Doing the best I can, I have decided upon 9am Tuesday until 4pm Wednesday in each week for the midweek overnights to maximise the child’s time with the mother when she is not attending her TAFE courses.
Further, it would be in the child’s best interests to share special occasions with each of the parties (Mother’s Day, Father’s Day, Christmas Day, the mother’s birthday, the father’s birthday), and I will make provision for this in the order.
As to holiday arrangements, I will include a provision as sought by the father, which in my view would also be in the child’s best interests.
Further, there is no reason why the mother or the father ought not be able to participate in the child’s activities at day care, kindergarten, prep or school, subject to the rules of those places, and I will include such a provision as one also in the child’s best interests.

Conclusion as to reasonable practicability

I am satisfied also that this particular arrangement for the child to spend substantial and significant time with each of her parents is reasonably practicable, within the meaning of s 65DAA(5).

The question that remains

The question that remains for my decision is whether the time the child spends with the mother should be supervised or not supervised, and if it is not to be supervised, whether in any event in relation to the overnight time the child spends with the mother she should be required to accommodate the child at the home of the maternal grandparents.
I take into account Dr V’s evidence that she discharged the mother from the need for further psychiatric intervention. However, Dr V was careful to differentiate between her assessment of the mother’s mental health, on the one hand, and her assessment of whether the child may be at risk in the mother’s care, on the other hand, which she said she did not “formally assess” but as to which, nonetheless, she made observations, including that the mother is “capable of identifying and responding to the child’s needs”, and “has the capacity to care for her child in an appropriate manner”. Dr V said also however that if the mother’s version of the 2 January 2005 incident was not true “then obviously there would be reason for concern” and that her evaluation of whether there may be risk to the child would be different.
Dr H concluded that there is “evidence to suggest” that the mother has “underlying personality instability in the borderline domain”, that her history is “frankly lacking in a degree of veracity” and that in his view the mother’s behaviour has impact upon her ability to parent the child.
Further, I do not understand Dr H’s evidence at the conclusion of his addendum report to be a recommendation for immediate “unsupervised access” but rather that the “access” (Dr H’s terminology) be “monitored and graduated”, and that he could see no reason why “in the course of this process” there could not be “unsupervised access”.
In the same addendum report, however, Dr H said that “the concerns that I raised in my previous report remain”, and that he remained concerned “about her underlying personality stability”.
I would refer also to my own conclusion that I am satisfied that there has been and remains a need to protect the child from physical harm in the mother’s care. In my view, this need possibly will continue until a treating psychiatrist, properly informed as to the mother’s history and the findings I have made, by being provided with a copy of these Reasons for Judgment, is able to conclude that the mother does not pose a risk to the child’s life or safety.
The child, since August 2006, has spent day time with the mother unsupervised, and since 1 February 2007 day time and overnight time, unsupervised, but with a requirement that during the overnight periods the mother accommodate the child at the maternal grandmother’s home.
Based on this history, the psychiatric evidence to which I have referred, in particular Dr H’s continuing concerns, and the absence of any evidence by any treating psychiatrist to whom the mother has been truthful, in my view it would be in the child’s best interests that the provision relating to the child’s overnight accommodation continue. In particular, having appropriately assessed detriment and benefit in relation to the child, in my view the proper balance is that the need to protect the child from physical harm in the mother’s care, which I have identified, and the potential or consequent detriment or harm to the child if she is not protected, outweigh the possibility of benefit to the child by the absence of that requirement. However, I will alter the provision to make reference to the maternal grandparents’ home, rather than the maternal grandmother’s home, as the mother said she lives with both of her parents, and both, I note, were present during the trial.
Moreover, even absent any need to protect the child, and thus a detriment/benefit assessment, there is support for the requirement in the child’s best interests by Ms F’s recommendation for the child to spend overnight time in the maternal grandparents’ home based on the circumstance that the child is familiar with that environment and that, in that environment, there is also the availability of emotional and practical support for the mother.
I have considered including a provision that for the overnight periods one or both of the maternal grandparents be present from say 7pm until 7am. However, as such a provision would be tantamount to an order for supervision, I will not include that in the order. Moreover, Ms F’s recommendation in relation to the child spending overnight time in the maternal grandparents’ home, as I have said, was based on the circumstance that the child is familiar with that environment and that, in that environment, there is also the availability of emotional and practical support for the mother, rather than the need for supervision as such.
The child will be 3 years in October 2007. I have considered Ms F’s recommendation that the overnight accommodation requirement continue only until the child is 3 years. However, I am not prepared to include such a provision in the order, primarily because in my view the need to protect the child from physical harm in the mother’s care possibly will continue until a treating psychiatrist, properly informed as to the mother’s history and the findings I have made, by being provided with a copy of these Reasons for Judgment, is able to conclude that the mother does not pose a risk to the child’s life or safety. Plainly, this is a matter for my assessment, based upon the psychiatric evidence, and not Ms F’s assessment, Ms F not having conducted the trial and heard and evaluated the psychiatric evidence.
My decision on this aspect of the matter may have been different if the mother had not lied to her treating psychiatrist as to the truth of the 2 January 2005 incident, indicating either that the mother is untruthful, or unaware of what is safe or unsafe for the child, and I take into account as to this aspect of the matter Dr H’s evidence “It comes back to insight” and, in relation to any treating psychiatrist “All they have to go on is what she tells them – whether what she tells them is true”, in the context of his own observation that the mother’s history was “frankly lacking in a degree of veracity”.
It is not for me to seek to fetter the future exercise of judicial discretion in this matter. However, as the trial judge, it is I think not inappropriate for me to observe that a change in circumstances (Rice v Asplund (1979) FLC 90-725) may be able to be shown by the mother in about 12 months if by that time she is able to furnish evidence by a treating psychiatrist properly informed as to the mother’s history and the findings I have made, by being provided with a copy of the Reasons for Judgment, that she does not pose a risk to the child’s life or safety. There may of course be other changes in circumstances even without such evidence, such as the mother after such a passage of time having had no further incidents of placing the child in physical danger. For my part however at this stage, without prejudging the matter, I would consider the psychiatric evidence to which I have referred as essential. Such matters however are for the future, and my observations are not intended to fetter the course or outcome of any future proceedings concerning the child.

In any event, the child’s living arrangements will need to be reassessed before the child commences her preparatory school year presently anticipated to be 2010 so that, at that stage, possibly she spends the whole of the school week with either the father or the mother according to her best interests as they then may be determined.

Other matters

I have decided against any provision that the mother care for the child while the father is at work, if he should return to full time employment, for the reasons explained by Ms F, namely that this would not be practicable having regard to the geographical distance between the parties’ homes and also that the child should be in the primary care of one of the parties.
It would be in the child’s best interests that when she is able to use a telephone the parties encourage and allow liberal telephone communication between the child and the other party at all reasonable times; and that there be non denigration, information, communication and authorisation orders.
I propose also to include in the orders, as canvassed during argument, that between 18-21 January 2008 the child spend additional time with the mother to attend the maternal aunt, Ms T’s wedding at Whitsunday Islands, with no make up time to the father.

Decision

Having regard to all of the evidence, the submissions, and the statutory matters which I must consider, in my view the child’s best interests would be served by the orders which I have mentioned.
In so deciding, I take into account that the mother, if she wishes, and can afford to do so, may arrange separate accommodation for herself, so as to progress her own life. However, until there be some later Court order, in the meantime the 4 nights in each fortnight the child will be with her she will need to spend at the maternal grandparents’ home.
I do not propose to include in the orders that the mother further attend upon Dr V, or any other psychiatrist of her choice. Plainly, that solely will be a matter for the mother’s decision.

I certify that the preceding two hundred and fifty one (251) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:

Date:

[2007] FamCA 676

11 July 2007

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