Johnston & Pritchard

[2011] FMCAfam 1082

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JOHNSTON & PRITCHARD [2011] FMCAfam 1082

FAMILY LAW – Parenting – 5 year old boy – child’s relationship with each of his parents – willingness of each parent to encourage the child’s relationship with the other parent – parental capacity – the impact of conflict between the parents on the child – importance of stability for the child’s parenting arrangements.

Family Law Act 1975, ss.60CA, 60CC, 60CC(2), 60CC(3), 60CC(4), 61DA(1), 61DA(2), 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5)

Goode & Goode [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR & GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1

Applicant: MR JOHNSTON

Respondent: MR PRITCHARD

File Number: SYC 4591 of 2008

Judgment of: Walker FM

Hearing dates: 24 & 25 February 2011, 3 & 4 May 2011, 16 June 2011 & 11 August 2011

Date of Last Submission: 11 August 2011

Delivered at: Sydney

Delivered on: 12 October 2011

REPRESENTATION

Counsel for the Applicant: Mr Livingston (in part)

Counsel for the Respondent: Ms Gillies

Solicitors for the Respondent: Paltos Briggs

Counsel for the Independent Children’s Lawyer: Mr Gilbert

Solicitors for the Independent Children’s Lawyer: Slade Manwaring Solicitors

THE COURT ORDERS THAT:

1. The parents are to have equal shared parental responsibility for the child X born (omitted) 2006, except as follows:

   (a)The parents are to consult with one another about any treatment recommended for X by any medical specialist and in the event that the parents are unable to agree about the recommended treatment, the final decision is to be made by the father.

   (b)The father is solely responsible for arranging for X to attend any consultations with any counsellor or therapist or any psychologist or medical professional for the purposes of providing counselling or therapy for X.

2. X is to live with his father commencing from Friday 21 October 2011.

3. Unless otherwise agreed, X is to spend time with his mother as follows:

   (a)During the school term, on a two (2) week cycle as follows:

   (i)In week one from after school on Friday, to before school on Monday, and

   (ii)In week 2 from after school on Monday to before school on Tuesday.

   (iii)Week one is to commence on Friday 28 October 2011.

   (iv)These orders are to be suspended during the school holidays, and the mother’s time with X is to commence on the Friday of the first week in each new school term.

   (b)In school holidays:

   (i)For the first half of each of the school holidays at the conclusion of term 1, term 2 and term 3.

   (ii)For half of the Christmas school holidays, being for the second half of the Christmas school holidays commencing in odd numbered years and for the first half of the Christmas school holidays commencing in even numbered years.

4. Special Days, unless otherwise agreed:

   (a)X is to spend time with his mother from 9.00 am to 5.00 pm on Mother’s day if he is not otherwise in his mother’s care on that day; and,

   (b)X is to spend time with his father from 9.00 am to 5.00 pm on Father’s day if he is not otherwise in his father’s care on that day.

   (c)In the Christmas holidays commencing in the year 2011 X is to spend time with his mother from 3.00 pm on Christmas Day to 5.00 pm on 30 December 2011.

   (d)Commencing in 2012, X is to spend time from Christmas Eve at 5.00 pm to Christmas Day at 12.00 noon with the parent with whom he would not otherwise be spending time in accordance with Order 3(b) above.

   (e)The parent with whom X is not living or spending time on his birthday is to spend at least two and a half hours with him on that day if it is a school day, and five hours with him if it is a non school day, failing agreement this time is to be from after school at 5.30 pm on a school day, and from 10.00 am to 3.00 pm on a non school day.

   (f)In any block period of time X spends with his mother during the school holiday periods, the father is to have regular telephone contact with X on three days each week, at times to be agreed upon by the parties in writing and failing agreement, at 6.00 pm on Monday, Thursday and Saturday, and for that purpose the father shall telephone the mother on a nominated land-line or her mobile telephone number and the mother shall make the telephone available to X to enable him to speak with his father.

   (g)In any block period of time X spends with his father during the school holiday periods, the mother is to have regular telephone contact with X on three days each week, at time to be agreed upon by the parties in writing and failing agreement, at 6.00 pm on Monday, Thursday and Saturday, and for that purpose the mother shall telephone the father on a nominated land-line or her mobile telephone number and the father shall make the telephone available to X to enable him to speak with his mother.

   (h)Otherwise X is to have reasonable telephone communication with the parent with whom he is not living or spending time.

5. Changeover, when not from school, is to be in a public place agreed between the parents and failing agreement in the (omitted) area at (omitted) shopping centre.

6. Each of the mother and father shall:

   (a)Advise the other of any medical treatment being administered to X and of any medical appointments at which X is to attend prior to his attendance at such appointments; and,

   (b)Provide all authorities and directions necessary for all health professionals consulted by X to provide to each of the mother and father all information and material held by them in relation to X.

7. Neither of the parents is to take X to consult with any medical specialist without advising the other parent prior to the making of any appointment with any such specialist.

8. Each of the parents is restrained from taking X overseas except with the written consent of the other parent or Order of the Court.

9. Each of the parents is restrained from using derogatory words about the other parent in the presence or hearing of X.

10. The mother is restrained from approaching or entering upon the father’s residence.

11. The father is to use his best endeavours to ensure that Ms E does not accompany him on any occasion when he attends the mother’s house.

12. The mother is restrained from consuming alcohol while X is spending time with her.

13. Each of the parents is to keep the other informed at all times of their current residential address, mobile and landline telephone numbers and email addresses.

14. Each of the parents is restrained from changing X’s enrolment at (omitted) Public School, and enrolling him in another school, without the written agreement of the other parent.

15. Within 28 days of the date of these Orders, the father is to pay one half of the costs of the Independent Children’s Lawyer which amounts to the sum of $6,243.00.

IT IS NOTED that publication of this judgment under the pseudonym Johnston & Pritchard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 4591 of 2008

MR JOHNSTON

Applicant

And

MR PRITCHARD

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a matter where the parents are in dispute about the parenting arrangements for their young son, aged five.

Background

1. The parents are now both in their early forties. The mother says that they commenced to cohabit in around (omitted) 1999. They married on (omitted) 2005.

2. X was born on (omitted) 2006.

3. The parents separated on 15 April 2008 and divorced on 4 August 2009.

4. At the time of X’s birth the parents were largely working from home.  The mother conducted a business as a (business omitted).  The father worked as a (occupation omitted), sometimes at home and sometimes at his (business omitted). The mother says that while she worked around thirty hours a week, she worked primarily while X was asleep and was able to breast feed him until he was at least eight months, or possibly 10 months of age.

5. The father disputes the mother’s claim that she was mainly responsible for X’s care before separation and says that he had the substantial care of X until he and the mother separated.

6. The mother says in her trial affidavit that when X was between 10 and 18 months of age she continued to work between 30 and 38 hours a week, mostly at night while X was asleep. She says the father spent many hours on the internet playing (games omitted), although she agrees the father started to assist feeding X when he commenced on solids at about 10 months of age, and helped with changing nappies and putting X to bed. When X was 12 months of age a nanny came on Mondays. Another nanny was employed to look after X on Tuesday mornings.

7. The father agreed he spent time playing (games omitted). He denies he spent the hours that the mother claims and says that he and the mother often participated in the game together when X was asleep. The Court cannot determine how many hours the father spent playing (games omitted). It was certainly an activity to which he had some commitment. He agrees that he became a (game omitted).

8. The parents were clearly balancing X’s care with their work and other activities. Even on the mother’s evidence the father was involved to a reasonable degree in X’s care when he was quite young.

9. The parents separated when X was not quite two years of age. The father left the matrimonial home.

10. Not long after separation the parents agreed to an arrangement whereby they each looked after X for half the time and X also spent two days a week in family day care. The mother says that she was concerned that this arrangement for sharing X’s time between she and the father was not suitable for X at his age. In June 2008 the parents met with Ms J, a child psychologist to discuss issues about X’s behaviour which troubled the mother. X himself was not involved in this. The father agrees that Ms J suggested that X spend more time with his mother whom she assessed to be X’s primary carer. The father says that he did not agree with Ms J’s assessment but agreed to trial new care arrangements which meant that X spent six nights a fortnight with him.

11. The father says that in July 2008 when he went to collect X from his mother, she told him that she was changing the parenting arrangements so that X would be spending six nights each week with her.  The father says that the mother told him this over the intercom at her apartment block and refused to allow him to take X with him. The father telephoned the police.

12. The father annexed to his affidavit[1] a letter from the mother’s solicitors dated 17 July 2008. Outlined in this letter was a change of parenting arrangements which appears to provide that X would spend two nights and four days with his father each fortnight. The letter stated that, regardless of the father’s consent, the mother proposed to put these arrangements into effect from 2 July 2008. The letter advised that the mother had attended (omitted) Family Relationship Centre on 15 July 2010 and anticipated that the father would be contacted shortly to attend mediation at the Centre. The letter also raised various financial issues. The mother says in her affidavit that she instructed her solicitors to send this letter to the father to overcome what she had concluded to be X’s separation anxiety.  

    [1] Annexure “C”.

13. The father says that he did not receive this letter until about 28 July 2008.

14. The mother says that X remained continuously in her care for a period of two weeks from the date the letter was sent up to the morning of Saturday 2 August 2008, when the father collected X from her, in accordance, the father says, with the new arrangements “unilaterally” imposed on him by the mother.

15. The father then kept X with him for a period of about one week until, he says, he and the mother were able to attend “an urgent mediation session.” The mother says that the father sent her a text message on 3 August that he was not returning X and that her solicitor would hear from his solicitor on Monday. Letter dated 5 August 2008 from the father’s solicitor to the mother’s solicitor advised that X would remain in his father’s care until the parents attended mediation. The letter referred to a private mediator whom it was advised would be able to see the parents sooner than the planned mediation via Relationships Australia.

16. The mother instituted proceedings for X’s return on 7 August 2008. On 8 August, the parents attended mediation which had been arranged by the father through the private mediator referred to in the letter dated 5 August 2008.

17. On 13 August 2008, consent orders were made providing that X would live with his mother and that the parents would have equal shared parental responsibility for him. These orders provided for X to spend specified time with his father on alternate weekends including overnight on Saturday and for various days during the week including overnight on each alternate Thursday. On 8 December 2008 further consent orders were made which provided for a property settlement between the parents and amended the parenting orders to provide that until X was three, he would spend time with his father each Monday from 9.00 am to 6.00 pm, each Thursday from 9.00 am to Friday at 7.00 pm and each alternate Sunday from 10.00 am to 6.00 pm. X was thus spending time with his father for two nights and seven days each fortnight. When X turned four, his time with his a father was to increase to three nights and seven days each fortnight.

18. In mid 2008 the father met his current partner Ms E who is from (country omitted). They commenced cohabiting on (omitted) 2009. They have two daughters Y, born on (omitted) 2009, and Z born on (omitted) 2011.

19. In July 2009 the mother requested a change of the parenting arrangements. She proposed that if X was unable to attend preschool on Tuesday or Wednesday, the father would care for him so that she could work. The mother in her affidavit said that she agreed with the father’s account of these changes in parenting arrangements,[2] although she says in her affidavit that she suggested changes to allow X to spend more time with his father before Y’s birth. The father, however, says that in late July the mother sent him an SMS message saying that she needed to talk to him and Ms E as soon as possible about changing her work hours.

    [2] Mother’s affidavit sworn 21 February 2011, paragraph 71.

20. Subsequently there were various incidents between the parents which will be considered later in the judgment.

21. The father says that in January 2010 the mother requested a further change in the arrangements for X and that as a result, he and the mother eventually agreed to a two week cycle which provided that in week one X spent time with his father from Tuesday at 10.00 am until Wednesday at 5.30 pm and from Friday at 7.30 am until Saturday at 7.30 pm and in the second week from Tuesday 10.00 am until Wednesday at 5.30 pm and from Friday at 7.30 am until Saturday at 1.30 pm. The arrangements provided for X, who at that time was attending preschool each Monday, Wednesday and Thursday, to spend four nights with his father each fortnight. A notation to the consent orders of 8 December 2008 stated that the parents agreed to review the arrangements with the assistance of a mediator when X turned four with a view to implementing orders for X to spend equal time with each of his parents, however, further mediation between the parents in March 2010 did not resolve the issues.

22. On 20 April 2010 the parents agreed to another change in X’s care arrangements, which the father says was again at the request of the mother. It appears that this is not disputed by the mother. The father says that the arrangements for each two week cycle were then that in the first week X would be with him from Monday after preschool (or from Monday morning if X was not attending preschool) until Tuesday at 7.30 pm and from Friday at 7.00 am until Saturday at 1.00pm, and in the second week X would be with him from Monday after preschool (or from Monday morning if X was not attending preschool until Tuesday at 7.30 pm and from Friday at 7.00am until Saturday at 7.30 pm.) The father says that the care arrangements for X were again changed at the mother’s request on 6 July 2010 so that X spent time with him from Monday after preschool at 5.30pm, or from 8.30 am if he was ill to 7.30 pm on Tuesday, and each Friday from 8.30 am to Saturday at 5.30 pm. The father summarises these arrangements as meaning that X was to spend time with him for three or four days each week, depending whether or not he was ill, and could not attend preschool on Monday, and for two nights each week.

23. On 24 July 2010 in circumstances which will be discussed, the father retained X in his care. The mother describes this as the second occasion on which X was “taken” or “abducted” by his father.

24. The mother’s application for the return of X came before the Court on 4 August 2010 when an order was made that X be returned to her. The existing arrangements for X to spend time with his father were continued.

25. The father continues to work as a (occupation omitted) for a company owned by his father. He is a Director of the company. After separation the mother sold her (omitted) business. She spent a period of time working as a (omitted). She subsequently had other casual positions as a (omitted) and (omitted). She was available to assist (occupation omitted).

26. The mother’s particular interest has been in home renovations. She purchased a townhouse, with the proceeds of the property settlement and a relatively small mortgage. She later sold the townhouse, making a small profit on the sale. She purchased a four bedroom house, which she renovated. She planned to build a granny flat on the premises so that she could earn rental income.  Over time the mother’s mortgage has substantially increased and she has experienced financial stress. This has been a continuing source of friction between the parents. The mother gave her occupation as a homemaker at the hearing. It appeared that her income was substantially derived from government benefits and child support paid by the father.

The Evidence

1. When the hearing commenced the mother relied on her affidavit sworn on 21 February 2011 and filed on 22 February 2011, and her earlier affidavits sworn and filed on 27 August 2010 and on 27 July 2010. The hearing was part heard on 25 February. It was listed for further hearing on 3 and 4 May 2011. The matter was then listed for further hearing for submissions on 16 June 2011. On that date the mother sought to rely on further evidence. This request arose as a result of evidence given by the single expert, Dr B, on 4 May 2011 in relation to the mother’s mental health. The mother was given leave to rely on an affidavit sworn by her on 7 June 2011 and filed in Court. Subsequently each of the parties sought leave to issue further subpoenas. The mother had consulted psychiatrist, Dr P on 26 July 2011. A report of his, dated 26 July 2011, was contained in documents which the mother subpoenaed from the (omitted) Hospital. The hearing concluded on 11 August 2011.

2. The mother was represented by her solicitor and counsel throughout the hearing except on 11 August when she was unrepresented.

3. The father relied on his affidavit and that of Ms E which were both sworn on 14 February 2011 and filed on 15 February 2011.

4. The Court was also assisted by the report of Single Expert, Dr B, dated 4 February 2011.

The Proposals

1. The mother relied on her minute of orders provided at the commencements of the hearing which was Exhibit 1, in the proceedings. In her minute she proposed that she have sole parental responsibility for X, with particular information about X, to be provided to the father. She proposed that X spend time with his father each week from 2.55 pm on Mondays until the start of school on Tuesdays, and from the close of school on Friday until 5.30 pm on Saturday, for half of the school holidays and on special occasions. She proposed that the father be restrained form attending at her home with Ms E, that she be permitted to take X to (country omitted) for ten days each year, and that the parents ensure that X has a current passport.

1. The father proposed in his minute of orders, Exhibit 2, that he have sole parental responsibility for X with provisions for notifying the mother of particular matters and providing her with specific information about X. He proposed that X spend time with his mother each alternate weekend from Friday after school to the following Monday morning before school, for half the school holidays and on special occasions. He also proposed that an order be made that the mother attend upon a psychiatrist nominated by Dr B and that the mother cause that psychiatrist to provide written quarterly reports to him and to the Independent Children’s Lawyer. The father sought an order that he be able to take X to (country omitted) for holiday travel. He sought an order that the mother be restrained from approaching or entering his premises at (omitted). It appeared from her submissions that the mother did not oppose the restraint proposed in this order.

2. The parents agreed that an order should be made that X was to continue to attend his present school, (omitted) Primary School, for the remainder of his primary school education.  They agreed that each of them should be restrained from making derogatory comments about the other in X’s presence or hearing.

The Issues

1. It appears that the significant issues are the following:

   ·The high level of mistrust between each of the parents.

   ·The parental capacity of each of the parents.

   ·The father’s belief that the mother suffers from a mental illness.

   ·The mother’s belief that the father is not attentive to X’s health needs.

The Relevant Law

1. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order.

2. Section 60CC sets out the matters which the Court must take into account in determining what is in a child’s best interests.

Primary Considerations

Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child's parents.

1. The Full Court in McCall & Clark [2009] FamCAFC 92 considered how the expression “benefit to a child of a meaningful relationship” should be interpreted, and concluded that the preferred interpretation involved “the prospective approach” by which the Court “should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure that the particular child has a meaningful relationship with both parents.”[3] The Court adopted the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright [2007] FamCA 520, that it was synonymous with “significant” or “important” or ‘of consequence”, and that a meaningful relationship was therefore one which “is important, significant and valuable to the child.”[4]

   [3] McCall & Clark [2009] FamCAFC 92, paragraph 119.

   [4] McCall & Clark [2009] FamCAFC 92, paragraph 115.

2. This is a matter where X loves both of his parents and has a close relationship with each. As will be evident, the Court does not find that he needs to be protected from harm or from being subjected to abuse, neglect or family violence from either of his parents. Concerns about parental capacity will be discussed later. However, the Court finds that this is a matter where X would benefit from having a meaningful relationship with each of his parents.

Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The father gave evidence in his affidavit that on Monday evening,

   
   

   15 June 2009, he observed that X had about 6 or 7 bruises on his legs. He says that when he asked X where he got the bruises, the child said “on a chair” at his mother’s house and that questioned further X said “mummy hit me with a bat.”  The father was asked in cross examination whether he thought that the mother deliberately hit X with a bat. He said that he did not know. He said that he had never asserted that what X said was definitive evidence that the mother had hit him. The father agreed that he had prepared a document titled “concerns about X’s welfare” which he wrote to give Dr B, but said that he could not recollect whether the mother hitting X was amongst the concerns expressed. He agreed when he looked at the document that it was not mentioned. Dr B, in his evidence, could not recollect that the father raised a concern about this with him at interview. He said he would specifically ask about parents’ concerns at interview. The father nevertheless, maintained that the mother may possibly have hit X. However, there is nothing before the Court that would support any finding that the mother had hit X on this occasion. Given the father’s opportunity to tell Dr B about the incident, and his apparent failure to do so either in his list of concerns or at interview, it is difficult to find that the father has any strong concerns that the mother in fact hit X.  

2. The father’s counsel in submissions contended that there were actions by the mother which had placed X at risk of psychological harm. She conceded, however, that the psychological harm to which she referred probably was not psychological harm arising from family violence or abuse as defined in the Family Law Act 1975 (Cth). This is a the matter which would more appropriately be considered in subsection 60CC(3)(f) when the Court considers issues of capacity, given the significance of the definitions of the relevant terms in subsection 60CC(2)(b), which was emphasised by the Full Court in Slater & Light [2011] FamCAFC 1.

3. While the Court has concerns, which will be discussed at some length, about the adverse impact of the behaviour of both parents on X, this is not a matter where the Court would find that there is a need to protect the child from physical or physiological harm from being subjected to or exposed to, abuse, neglect or family violence.

Additional considerations

Section 60CC(3)(a) requires the Court to consider any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.

1. The father’s evidence at hearing was that X loves his mother.

2. The mother, however, in her affidavit said that X tells her that he does not love his father any more and that he only loves her and his pet dog.[5] The mother says that since the “second abduction” X keeps telling her that he loves her “about 50 times a day.” When she was asked whether she really believed X when he says that he does not love his father, the mother replied that she did not know what to think. When she was asked whether it was possible that X did not love his dad she said “yes, sure.” She rejected the possibility that X saying these things could have arisen as a result of the conflict between she and the father and said she believed that it was the result of “the recent abduction.”

   [5] Mother’s affidavit sworn 21 February 2011, paragraph 183.

3. X is just five years of age. Dr B, understandably, did not canvass X’s views about where he should primarily live. He did express the opinion, however, that X from his observations, seemed to have a close attachment to each of his parents.[6]

   [6] Single Expert Report of Dr B dated 4 February 2011, page 27.

4. The evidence in this matter, as will be discussed, is that X has been very much involved the conflict between his parents. Potentially, this could impact significantly on anything he is reported to have said to his parents. However, given X’s age, the Court finds that this is not a matter where the views of a child are a significant consideration.

Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons including any grandparent or other relative of the child.

1. Although there is a dispute between the parents about how much time they each spent caring for X up to their separation, there can be little doubt that apart from an initial short period following separation, X has spent more time with his mother than his father. He has however also spent quite a lot of time with his father. Since X was about three years of age he has spent about two nights a week and also quite a few days with his father each week, up to the beginning of this year when he commenced school.

2. Dr B evidence was that X had a close relationship with each of his parents. While he agreed in cross examination that X’s primary attachment figure to date has been his mother, his evidence was also that he had a strong secondary attachment to his father. His opinion was that X also had a strong attachment to his stepmother.

3. This evidence was not challenged in any significant way and the Court finds that X has a close relationship with each of his parents and a good relationship with his step mother.

4. The maternal grandfather lives in (country omitted) so X sees less of him. The mother has a sister living in Sydney, however as she and the mother are estranged, it is unlikely that X has any relationship with her at this time. X sees his paternal grandfather regularly. There is no reason not to accept the father’s evidence that X has a good relationship with his paternal grandfather.

Section 60CC(3)(c) requires the Court to consider the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.

1. This is a significant issue in this matter given the high degree of mistrust between the parents. Both the parents have acted unilaterally. The father has retained X on two occasions. The first occasion followed the mother’s decision to reduce X’s time with him. The mother, because of her beliefs about the father’s ability to care for X when he is sick, has refused to allow the father to collect him on a number of occasions. The mother’s beliefs about the father, may well reflect an overreaction to various events. Her emails to him reflect a high degree of animosity and criticism. In Dr B’s view while there was a high level of mistrust between the parents, the mother’s animosity reflected a more pervasive and high level of mistrust of the father by the mother than vice versa. The Court accepts this opinion. At hearing it was evident that the mother found it extremely difficult to respond in any positive way when she referred to the father or make the concessions about her behaviour, which the father was able to make about his own behaviour. The mother’s emails to the father included a threat to him to take X to (country omitted) where her father lives.

2. Dr B’s opinion was that of the two parents, the father was more likely to support X’s relationship with the mother than she was with him.[7] While Dr B was challenged about this opinion, the Court considered that he responded convincingly and the Court accepts his evidence about this and finds that the mother is somewhat less willing than the father to encourage X’s relationship with the other parent.

Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living).

[7] Single Expert Report of Dr B dated 4 February 2011, paragraph 28.

1. The arrangements for X to spend time with each of his parents have varied on many occasions since the parents have separated. An unfortunate aspect of this matter is the many changes which have been made in X’s care over time considering that he is only five years of age. In recent times he has been spending more time with his mother, especially overnight, although he has still spent significant time with his father. The Court has found that he has a close relationship with each of his parents.

2. While Dr B’s evidence was that X’s primary attachment was with his mother, he also expressed the opinion that X was not so vulnerable that he would not be able to adapt to a change in arrangements as a result of which he spent more time with his father than his mother. Dr B’s opinion was that, provided X spent regular periods of time with his mother, he should settle reasonably quickly, although there may be some initial adjustment issues. Dr B was not significantly challenged in his evidence about this. There is no reason why the Court would not accept it.

Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

1. This is not a significant issue in this matter at this time. The parents live in reasonable proximity to each other.

Section 60CC(3)(f) requires the Court to consider the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child including emotional and intellectual needs.

1. This is a very significant consideration in this matter as both parents raise issues about the parenting capacity of the other. The mother alleges that the father is negligent in relation to X’s health care. The mother also alleges that changes in X’s behaviour occurred as a result of the two abductions of X by the father, and especially as a result of the circumstances surrounding the second occasions when the father retained X.[8] The father alleges that the mother suffers from a mental illness, that she does not always appropriately care for X and that her behaviour exposes X to stress which is then reflected in his behaviour.

   [8] Mother’s affidavit sworn 21 February 2011, paragraph 182.

2. There are a number of incidents which demonstrate the dynamic between the parents and the potential adverse impact of this on X. The circumstances of the first occasion on which the father retained X on 2 August 2008 have been outlined earlier in the judgment. It is clear on that occasion that both parents acted unilaterally. The mother determined that she would reduce the time which X had been spending with his father and refused to allow X to go with his father when he arrived to collect him. This was at a time when mediation had been arranged. The father acted unilaterally in not returning X on the next occasion he had X in his care. Both parents on this occasion took actions which were likely to cause stress and upset to the other parent. Neither showed an ability to reflect on the impact of this action on their son.

3. The evidence indicates that there have been scenes at changeover which would have been likely to cause distress to X. Ms E had registered Y for the baby bonus and family tax benefit. The father says that he had also updated the Family Assistance office in respect of what he describes as the new care arrangements for X introduced from January 2010. The mother was upset when she found out about the change which impacted on the benefits she received. The father says in his affidavit that the mother attended his residence to collect X on Friday 16 April 2010. He says that she shouted to him in X’s hearing “You bastard! You are a thief and a liar!” The father says that he responded “please don’t behave like this, X can hear you” and “please don’t talk about this now.” The father says that during the exchange X was being cared for by Ms E upstairs and was in hearing range of the front door. He says that Ms E came down stairs and told the mother to stop yelling and leave. The mother, he says, did not stop shouting. The father says that he returned X to his mother, that she then put him in the car, accelerated the car screeching the tyres, made a U turn and drove back and stopped in front of his house. He says that the mother then came up to the front door and started to strike the front window with closed fists causing them to shake.

4. The mother was cross examined about this and said that there had been a discussion with the father on that occasion, and that she asked if the father could give correct information to the Family Assistance office as what he had reported to the Office had impacted on her income. She said the father refused and that “his girlfriend” came out of the house screaming at her in front of X and telling her to leave the property. She denied that she arrived at the father’s house and started shouting at him. She said that she did not recall calling the father names. The mother was asked about the appropriateness of such a conversation in X’s presence. She said that X was running around the front yard and that she did not think that he was paying attention to what she and the father were talking about and that the conversation was not heated until Ms E came out of the house shouting at her. The mother denied that she drove off screeching her tyres or that she stopped the car and ran up to the front door and shouted abuse at the father.

5. The mother’s upset about the father’s actions which resulted in a change in her benefit is clear from the evidence. Her emails indicate her readiness to use very insulting words. The Court finds that it is most likely that she used the words attributed to her and that it was this that caused the father’s partner to intervene. The Court also accepts that Ms E also yelled at the mother in front of X and that it was likely, as the mother says, that X asked her in the car why Ms E had been yelling at her. The Court also finds that it was likely that the mother returned to the house shaking the door as described by the father. This is consistent with behaviour which will be discussed later. The mother in referring to her subsequent discussion with X in the car about money and the father, acknowledges herself that she was “very distressed and disturbed” and “did not really think about what came out of her mouth.”

6. In an email exchange not long after this when the father had complained that the mother was talking to X about him taking her money, the mother responded on 28 April 2010 “I am not going to lie to him so is [sic] you want him to stop telling you that you are taking mummy’s money – stop doing it”, and concluded with the words “Now fuck off and let me get on with my life – I don’t need to be harassed by you – you dishonest creep. Get some conscience you half brained scum bag”.[9] When questioned about this, the mother said that she was pretty mad because she had also lost her job at the time. She believed it was as a result of the father making a complaint to the Department of Family and Community Services. She acknowledged that the father did not communicate to her in the type of language which she used in her emails, but said that was because he had no reason to do so.

   [9] Exhibit 3, page 59.

7. The father says that not long after this incident he received an email from the mother saying that she wanted to revert to the previous care arrangements.

8. The father planned to visit (country omitted) with Ms E and their daughter, Y, from 7 to 28 June 2010. The father says that he and the mother exchanged emails about this in early April and that the mother did not object to his plans at that time.  The mother agreed in cross examination that the father offered to take X on this trip. She agreed that the father had checked with her several months before the proposed trip to make sure that she was aware of his plans. This was before he purchased the tickets. The mother agreed that she said that she was happy for X to stay with her for the extra days each week while the father was away. She agreed, however, that closer to the time of the proposed travel, she demanded that the father hire a nanny to assist her should X become ill during the weeks the father was away. The mother said that this was because the days the father was to look after X were her work days and she could not afford to take time off work if X was ill. The mother agreed that she became quite abusive because of the father’s refusal to provide alternate care. The mother was asked about an email which she sent to the father on 30 May 2010. She said she was vaguely aware of it. It was put to the mother that the email she sent was in the following terms:

   I have called DOCS for help with someone to look after X on the days that you re supposed to if he is unwell and lodged a report. I was told that he may be placed with another foster family for the period that you are away if you are unable to find someone to care for him if he needs care. I cannot believe that you neglect your son this way you are certainly the most disgusting thing that was ever created. 

1. The father’s evidence is that he had organised and paid for X to attend preschool on the days when he was away and that he subsequently set up an account for Dial an Angel to provide a nanny if X was sick and unable to go to preschool. The mother was advised of this in an email from the father.[10]

   [10] Exhibit 3.

2. On 24 July 2010, some weeks after he returned from (country omitted), the father retained X. The father had collected X on the morning of 23 July 2010, a Friday, in accordance with the Orders. The mother says in her affidavit[11] that later on that day, she sent the father an email saying:

   I have lost my job and as a consequence, I cannot make my mortgage repayments. Please assist me financially until I get another job by making an advance payment of child support. Without such assistance, I may need to rent out our home and, if that was to occur, X and I may need to live in a refuge or find some temporary accommodation until I find another job.

   [11] Mother’s affidavit sworn 21 February 2011, paragraph 99.

3. The father, she said, responded “I will not permit X to live in a refuge and can not help you because I cannot afford to.” The mother says that she sent a text to the father saying “…there is a problem with the hot water system. Could you please shower X before you return him.”

4. The father, she said replied “It would be better if he stayed here for a while until you can get something sorted out because he won’t be able to wash at your place.”

5. The mother says she responded at 3.00 pm “it’s been fixed so he can come home now” and that the father responded “It’s better if he stays here for now I don’t think that you are able to care for him properly now.” She says the father sent a further text “Please do not come over to try to get him. We will not open the door to you and we will call the police. It will be distressing for X so please do not come here.”

6. The father gives a slightly different version of the emails and texts sent by the mother.

7. The various emails exchanged between the parents are Exhibit 3 in the proceedings.  An email from the mother to the father on 24 July refers in part to a text massage and says that “the hot water heater seems to have died. Unfortunately I cannot rent out any part of the house without it and I do not have money to replace it, so X and I will be forced to use public showers from now on.” The mother says in a further email that if the father does not assist she will have no choice but to sell and move out of the city or move into a refuge and rent out both parts of the house.

8. The father agrees that he responded as set out by the mother.

9. The father’s evidence is that he was not sure that the hot water had been fixed and that he decided not to return X to his mother. He says in his affidavit that he telephoned the police advising of this and warning that he believed that a scene would follow later in the evening.[12]

   [12] Father’s affidavit sworn 14 February 2011, paragraph 273.

10. The mother attended the father’s home. The father videoed her attendance. The video was in evidence in the proceedings.

11. The video indicates that the mother stood outside the front door of the house asking for X’s return. The father refused. The mother stayed outside the front door for approximately 20 minutes asking for X’s return. She then pressed her car horn for a long period of time and returned to the house shaking and banging on the door. X for a long period of time, was standing by a glass window or door.  His mother was on the other side. While standing there, X at times repeated the words the parents were saying to each other. At other times he kissed his mother on the glass as she bent down. Sometimes he cried. The father referred to the police being on their way. X said “the police will let me out. I’ve been crying.” At one point the father said to X “I’m not trying to destroy mummy. You shouldn’t be listening to this sweetheart.” X asked his father “Why are you doing that daddy?” and the father responded “because I need to.”

12. The father was cross examined about this incident. He acknowledged that he made an error in judgment in videotaping the mother. It was put to him that he would have known this would be quite inflammatory. He said that everything happened so fast that he had not really thought about that aspect.

13. While the father in cross examination appeared to attempt to give some explanation for his actions by saying that things happened fast in the evening and that he did not know that the mother was coming to his home, the Court has difficulty understanding this evidence. It must have been highly likely that the mother would come to collect X. It is consistent with her pattern of behaviour. The father must have expected it was likely. He had warned her against it. Further, in his affidavit, he said he had warned the police. The father was reluctant to acknowledge that in the scene at the door he ordered the mother off the property, although these words are clear on the video. He agreed that X was present for most of the filming, and that he was distressed by the events. He agreed that he thought he said to X “I know you would like to go back to mummy”. He agreed that X and his mother began kissing each other through the glass. He said X’s presence was “unfortunate.”

14. It was put to the father that although the mother said in one of her emails preceding the incident that she did not have enough money to pay for food for herself and X for the next month, he could not have thought that she would let X go without food. The father said “I didn’t know.” He accepted that the mother was frustrated and annoyed when she sent the emails and texts.

15. Dr B had seen the video prior to giving evidence in the proceedings. His evidence was that what occurred was a terrible situation. In his opinion, the scene demonstrated that each of the parents was prepared to take a position with incredible tenacity. The father, in Dr B’s view, appeared to be determined to record the whole thing “relentlessly” and the mother decided that she was going to repeatedly ask for X back and then “create a racket outside the house.” Both parents, in his view, completely lost sight of what was in X’s best interests, in the way they were saying things within X’s hearing, when they could hear him parroting the things they had each said to the other. It was, he said, in the father’s hands to remove X from the situation and take him upstairs. This, he said should have been done straight away rather than about twenty minutes later during which time the child had had his nose up against the glass. Dr B’s evidence about this was not challenged.

16. The mother alleged that an officer from Department of Family and Community Services contacted her while she was at work in early March 2010 following a report the father and Ms E had made about her. She said that she was on the phone for about an hour and that subsequently she lost the (omitted) job which she had. The mother said that after the family came back from a two week holiday, she received a text terminating her employment, although previously she had been offered longer hours. She blames the father for this, although there is no specific evidence that her phone call with the Department while she was at work on that particular occasion, was the cause of notice being given to her some weeks later. Ms E in cross examination agreed that she and the father had visited a Department, of Family and Community Services office at that time and the documents relating to the visit and the subsequent investigation were tendered in evidence. The documents indicate that a departmental officer telephoned X’s preschool director who made no complaints about the mother’s presentation at the time and described her interactions with X as observed to be appropriate. The documents also indicate that a long conversation was had with the mother on her mobile phone.

17. It was put to the mother that she had called the father a “scumbag” at changeover in front of X in August 2010 and later in October 2010. The mother recollected having done this on only one of these occasions.

18. The father in his affidavit says that there had been some email exchanges over the weekend of 27 October 2010 about X’s health,[13] and that he had taken him to see a Dr C on the Saturday. He says that on Monday morning the mother sent him an email saying that X was still unwell and she was going to keep him home until he was well enough to go to preschool. She said that X could see him later in the week when he was well.

    [13] Father’s affidavit sworn 14 February 2011, paragraph 132.

19. The father says that he responded that “I’m here now anyway.” He says that when he arrived at the mother’s home she said that she was not going to hand X to him but that X came running out of the house and jumped into his arms and that he carried the child to the car and put him in the car seat. He says that the mother abused him and called him a scumbag and stood in the door of the car hugging X for several minutes and that he could not drive away.

20. The mother said that she did not call the father a scumbag. She did not acknowledge some of the other behaviour attributed to her by the father. She recollected that she had said “don’t you dare try and take him, you giant piece of scum.” The Court allowed into evidence a recording of the incident to which the mother listened. She agreed that she could hear the father ask her to move out of the way and that she called him a scum in the presence of the child. It was put to her that X said “don’t say scum.” The mother replied that she did not hear that because the recording was not clear enough.  She agreed that the father asked her to stop denigrating him in the presence of the child and that she told him to “shut up.” When the mother was asked whether X may have been subjected to stress by the way she behaved on the day, she responded “a little.” She said that X did not know what a scum was because he had asked “what’s a scum?” Clearly the mother tried to minimise her behaviour and its effect on X on that occasion.

21. A very significant dispute between the parents is the care X receives if he is sick. The mother says that the father neglects X’s health. The father says that the mother “over services” health providers for X. The issue has clearly been complicated by the lack of trust between the parents, by the working arrangements of each of them and by the mother’s need at particular times to work on Mondays when X would have ordinarily been at preschool. As discussed, the parents seemed to have reached an agreement that if X was sick on Monday his father would look after him.

22. The particular incident which the mother refers to as a justification of her belief that the father neglects X’s health relates to an illness which caused X’s admission into hospital. The mother says in her affidavit that on the night of Saturday 19 September 2009, X appeared to be very unwell with a high temperature and that she called a doctor who visited the home. The mother says she thought that X had a sinus infection because of his temperature and nasal discharge. The doctor, she said, told her that he thought the fever would break in 24 hours. The mother says that X appeared to be feverish on Sunday evening and woke about three times during the night complaining of a headache for which she gave him Panadol.

23. The mother says that she telephoned the father on Monday morning saying that X was very sick, and saying that he needed to collect him and take him to a doctor first thing in the morning and that he needed to be kept at home instead of going to preschool. The father, she says, replied that he would be over shortly. The mother says that when she phoned the father in the mid morning he said that X was fine and was at preschool, that he was just a bit tired, a bit off his food and still had a headache and fever but did not need to see a doctor.

24. The mother says also in her affidavit that she called the father the following day, and the father told her that X had slept most of the night and the day, that he had a migraine and woke up crying every four hours and was given medication for his headache and to help him sleep. He said that X had got up and played in the back yard for about two hours and then went back to sleep. The mother says that following that conversation with the father, she phoned the father on about four occasions saying that he needed to take X to the doctor but that the father replied that he was fine and just had a migraine.[14]

    [14] Mother’s affidavit sworn 21 February 2011, paragraph 80.

25. The mother says in her affidavit that the father returned X to her at about 6.30 pm on Tuesday and carried him asleep from the car and put him in his bed still asleep. The mother says that just before midnight X awoke crying and clutching his head complaining that it hurt. She called the medical assistance number. She says she was told that X could have meningitis and was advised to take him to hospital urgently. The mother advised that there would be a wait at (omitted) Hospital when she called so she took him to a private hospital. X was diagnosed as having either orbital or preorbital cellulitis which was described as a swelling of the tissue and soft bone surrounding the eye. He was transferred to (omitted) Hospital the following day. The mother says that she phoned the father at about 1.00 am and told him what occurred and that he responded that he would call her in the morning.

26. The father says in his affidavit that he collected X from preschool at about 5.30 pm on Monday. He does not say in his affidavit whether it was he or the mother who took him to preschool on that day although he asserted at hearing that it was the mother who had taken X to preschool on the Monday. He says the reason why he is so certain about this is because he received a text from the mother requesting that he drop a nappy into the preschool because she had forgotten to pack one in his bag. The mother says the preschool contacted her and asked about this and that was why the text was sent to the father. The father says that X was recovering from a sinus infection, that he observed that he was tired and put him to bed early and that he slept throughout the night. He says that X appeared to be feeling better when he woke up on Tuesday but that around 1.00 pm he said that he had a headache and wanted to lie down. The father says that he was not exhibiting any of the symptoms of sinus infection and that he suspected that X might be suffering from a migraine as he complained about the light. The father says that he himself has suffered from migraines and that he gave X Panadol and that he slept until the time he was due to be returned to his mother which he says was about 7.00 pm. The father said that he told the mother that X was experiencing headaches and that he suspected that he may be suffering from migraine and that if he was still suffering from headache in the morning he would take him to the doctor as he himself had an appointment at 10.00 am. The father says that he received a telephone call from the mother at about midnight saying that she was thinking of taking X to the hospital as his headache was not getting better and that the medical help line said that he might have an infection and should be checked.

27. The father says in his affidavit that since he was sick himself, he suggested to the mother that she take X to hospital as there was no point in them both being exhausted, and that he would look after X the following day. He says that he received a text from the mother at about 3.00 am saying that X had been diagnosed with orbital cellulitis and has to be transferred to (omitted) hospital. The father says that he went to visit X at (omitted) Hospital the following day and that X was hospitalised for about three days

28. In cross examination the father agreed that this was a serious incident and that the mother had acted appropriately. The father said that he would not have been surprised that the triage department at the hospital considered that one of the possibilities being considered was that X might have meningitis. He conceded that X was seriously ill but that his condition worsened after he was returned to the mother. The father was asked if he accepted that the majority of X’s care at the time was organised by the mother and responded that while that was so, it was because X was in her care at the time. X, of course, had been in the father’s care from after preschool on Monday until his return to the mother on Tuesday evening.

29. The mother when she was cross examined gave evidence similar to that in her affidavit about the doctor being called on the Saturday night and the advice what was given. She said that her recollection was the father came and collected X and took him to preschool which, she said she did not realise he was doing. The mother was questioned as to why she had not called the doctor out again if X continued to display symptoms. It was suggested to the mother that if X’s symptoms were as bad as she suggested she would have sought further medical attention. The mother responded that X had woken up during Sunday night complaining of a headache, and she gave him Panadol and thought the appropriate course was to take him to the doctor on the Monday. She insisted that that was why she had called the father on Monday morning to come and get X and why she had asked him to take him to the doctor that morning which she thought was the appropriate cause of action. The mother insisted that it was the father who took X to preschool.

30. The mother was consistent in her evidence that she had called the father on Monday morning saying that X was sick and asking him to take X to a doctor. However, on the evidence, the Court cannot be certain about which of the parents took X to the preschool on the Monday.

31. The father, to be prudent, may well have sought medical advice on the Monday or Tuesday. He was aware that X had been unwell. He refers to X having a sinus infection in his own evidence.

32. At the same time the mother makes some exaggerations in her account of this incident.  The mother at hearing said that when the father returned X on the Tuesday evening “he couldn’t walk and was in agony.” This is not the evidence set out in her affidavit. The mother agrees that it was not until after she arrived at the hospital that X’s eye began to swell.

33. The evidence does not indicate that the father was negligent. It is understandable that the mother became concerned that that father may be less likely to seek medical attention for X than she would be. It is significant that this incident occurred when X was moving quite often between the homes of his parents, so that his health was not consistently monitored by particular parent. This was particularly likely to cause difficulty in a climate of mistrust between the parents.

34. Following this incident, X’s illness and his medical treatment became a significant source of dispute between the parents. The mother often asserted that X had illnesses when the father did not observe the symptoms described by the mother. The father has nevertheless taken X to the doctor on very many occasions which are set out in his affidavit. It appears that at least on some of these occasions he has been acting to protect himself from possible allegations. The father, for example, refers to receiving an email from the mother on 17 May 2010 saying that X was ill and may have gastroenteritis, that she did not want to send him to preschool and requested that the father look after him that day. He said that on the Monday morning the mother phoned and asked him to come and collect X and look after him. He says that he collected X and thought that he appeared fine with no evident discomfort. However he and Ms E took X to his usual doctor. He said that the doctor said that the child was not suffering from gastroenteritis but had a runny nose. The father attached a medical certificate to his affidavit. The father says that he discussed with the doctor problems that X had in urinating and that subsequently test results indicated that X was suffering from a urinary tract infection for which the father obtained antibiotics. The mother was cross examined about this incident and asked whether she would have any criticism of the father for his care of X on this occasion.  The mother said that she could not respond as she could not recall whether the father took X to preschool or kept him at home.

1. The father said that on a Wednesday morning in mid July 2010 the mother left a voice mail message that X was too sick to go to preschool and could not have him at home because she was working under the house and so would bring him to the father’s home. The father sent a text saying that he had to work that day. A short time later the mother arrived with X. The father said that the mother got out of her car and left the child on the front lawn and quickly drove away. The father said that he cared for X that day and that he appeared to be well apart from a runny nose. He took X to the doctor and obtained a medical certificate which is attached to his affidavit and is to the effect that X was suffering from a mild viral rhinitis and was fit to attend preschool.

2. The mother in her emails to the father indicated that because of his behaviour, X was hospitalised on two occasions. The second occasion occurred after the father returned X to his mother on Saturday 23 October 2010, having spent the day with him. The father says in his affidavit that X did not show any signs of illness at the time.[15] Shortly after he returned X he says that the mother left a voicemail message saying that X had diarrhoea. The father responded that X had been fine all day. Later in the night the mother called an ambulance to take X to hospital because of her concerns about his breathing. After about three hours he was discharged, having been diagnosed with croup. The following day the mother asked the father to obtain the medicine X required which he did. The mother did not allow X to go with his father on the following Monday. She said that she needed to take him for a medical check. The father offered to do this. The mother refused the offer. The mother was crossed examined about these events and in particular whether she blamed the father for this attendance at hospital. She responded that she found it very “bizarre” that the father did not notice that X was unwell. She agreed that the croup was the cause of the hospitalisation, and that X began to suffer croup in the middle of the night. She said that after X arrived home she noticed that he had a stomach upset, and so sent a text to the father. She insisted that because X got the croup in the middle of the night he must have been unwell before he arrived home.

   [15] Father’s affidavit sworn 14 February 2011, paragraph 144.

3. On an occasion towards the end of 2009 the father attended the mother’s home to collect X and says that he heard noises which sounded like X screaming coming through the garage door of the mother’s townhouse. He was found in the garage in the mother’s car, unable to get out and he had soiled himself from a very dirty nappy. The mother says that she was in the shower and had not realised that X was able to unlock the door and get into the garage and then into the unlocked car. The father sees this as an example of the mother providing less than optimum care of X, just as she has interpreted the hospitalisation incidents as the father being negligent in the provision of medical care to X.

4. The father has alleged that the mother has a mental illness. He alleged this in a letter he sent to the Child Support Agency and in his attendance at the office of the Department of Family and Community Services. Dr B reported that the father told him that he had not had significant concerns about the mother’s mental health until after her mother died at the end of 2006. The father reported that at this time the mother began to become very agitated and increased her drinking. The mother, when asked, at hearing about her engagement with mental health services said that she had a very traumatic child and that she had seen a psychiatrist for counselling when she was seventeen and that she was in hospital when she was twenty-six as she was quite depressed. Dr B reported that the mother, who was born in (country omitted), told him that her parents had separated when he was six years old and that she had stayed with her mother for two years until her mother became quite mentally ill and she went to live with her father. In her affidavit the mother says that her mother was diagnosed with schizophrenia. Dr B in his report commented that the maternal grandmother had a thirty year history of hospitalisations associated with Bipolar disorder and alcoholism.[16] The mother told Dr B that she was kicked out of home at seventeen because she stood up to her father who she said had been violent to her. Later the mother and her father reconciled

   [16] Single Expert Report of Dr B dated 4 February 2011, paragraph 28.

5. The mother said that a couple of years before the death of her own mother she had brought her mother from (country omitted) to a nursing home in Australia when she was becoming increasingly incapacitated. Circumstances surrounding this led to an estrangement of the mother from her younger sister, who also lives in Sydney. The mother’s sister provided their mother’s health records to the father. He took them to Dr B who said that he was shown a couple of pages. This has caused the mother considerable upset. She referred to a fear that she, like her mother, could lose a child because of mental health issues.

6. The mother told Dr B that she had been addicted to marijuana for about five years in her early to mid twenties. She told him that after separation her drinking increased considerably to a bottle of wine a night. He said in his report that if he understood the mother correctly, she said that her drinking continued at this level for the next 12 months.

7. Dr B reviewed the mother’s health records. He noted that in February 1998 the mother was seen in the Emergency Department at the (omitted) Hospital following an overdose of Xanax. It was recorded that suicidal intent resolved quickly and that Dr P, the psychiatrist who saw the mother, thought that she had a borderline personality structure.[17] Dr B’s summary also refers to the mother being seen by the social worker at (omitted) Hospital prior to X’s birth. He reported that she was described as very anxious before and after delivery and again saw the social worker. He referred to a record of the mother being referred to the (omitted) Adult Mental Health Service in 2002 for management of stress and to a referral to the (omitted) Mental Health Team by her general practitioner in early 2009. Dr B noted in his summary that the mother was seen by a medical health worker and later by Dr D, a psychiatric registrar. No signs of mood or psychotic disorder were noted. The records indicated that the mother’s symptoms were largely associated with anxiety and that a diagnosis was made of Adjustment Disorder with Anxious Mood and Alcohol Abuse arising from the separation. Dr B’s summary indicated that the mother saw Dr D in April 2009 and that a referral was made for drug and alcohol counselling. Dr B recorded that metabolic testing did not indicate any symptoms of damage due to alcohol. He reported that the drug and alcohol counsellor whom the mother saw in August 2009 made a diagnosis of Dissociative Episodes of Anxiety with some residual post-traumatic stress symptoms. Dr B recorded that this counsellor mentioned a diagnosis of Bipolar Disorder but that there did not appear to be any basis for this particular diagnosis.

   [17] Single Expert Report of Dr B dated 4 February 2011, page 8.

8. Dr B reported that the mother referred herself to the health service again in August 2010 requesting a further assessment as “she was under the scrutiny of the Court” in regard to her mental health. The mother was seen by Dr A, a psychiatrist at the service, in September 2010. Dr B noted that Dr A appeared to have formed the view that the mother had an anxiety disorder which was being managed by her medication regime and that did not appear to think that the mother had Attention Deficit Hyperactivity Disorder (ADHD). He reported that there were no observations consistent with a major mood disorder such as Bipolar Disorder or a psychotic disorder. Dr B spoke with the mother’s general practitioner, Dr S, whom the mother had been seeing for about five years. She referred to the medications that the mother was taking for her anxiety.

9. The mother recalled at hearing that following separation, she had seen a psychiatrist at the western Sydney mental health team to assess whether her medication was appropriate or whether she had any undiagnosed illness. She said she was diagnosed with anxiety. The mother recalled that she had been to (omitted) Community Health Centre in 2002. She recalled that she was taking Valium for what she described as a few short weeks at the time, but not any other details about the consultations at the Centre. She agreed that she had told Dr B about her consultations with this service.

10. Dr B commented in his report that the mother had a rather complex history of emotional difficulties. He referred to the history outlined above and noted that the mother had volunteered for two psychiatric assessments in April 2009 and then in September 2010 in the face of accusations by the father that she had a mental illness like her mother. He observed that neither examination revealed a psychotic disorder or, in particular, Bipolar Disorder, although on the second occasion the mother was noted to be quite digressive. On both occasions, he observed, the psychiatric diagnosis “revolved around an anxiety disorder arising from environmental circumstances.”[18] Dr B commented that the mother, when he saw her, “was digressive, a little fatuous in her mood and as has been observed in the past, there was some increase in the pace of her speech.” However his opinion was that after spending almost four and a half hours with the mother during the assessment, he did not observe “any evidence of an overt mood disturbance.” His opinion was that “the symptoms of clinically active Bipolar Disorder cannot be easily disguised in a clinical examination.” He said he formed the view that the only diagnosable psychiatric disorders from which it appeared that the mother had suffered have been anxiety related disorders, being a Post Traumatic Stress Disorder in her early twenties, an Adjustment Disorder with Anxiety probably in 2008/2009 and at the time of his assessment, some mild to moderate anxiety symptoms.

    [18] Single Expert Report of Dr B dated 4 February 2011, page 29.

11. Additionally, Dr B said, the mother has a history of regular moderate to high alcohol use to manage her anxiety which he thought was probably also the explanation for her heavy marijuana use in her early twenties. He thought that the mother probably had a predisposition to the overuse of intoxicants to manage stress and anxiety and that she met the criteria for a Substance Abuse Disorder, currently in remission. He also formed the view that the mother has underlying personality traits of hypomania which he noted were more common in the biological relatives of people with Bipolar Disorder. 

12. When cross examined, Dr B said that Hypomania was a genetic condition which did not necessarily show itself as the full blown illness. This Court assumes that by this Dr B meant Bipolar Disorder. His opinion was that this condition had presented problems for the mother because it had made symptoms of externally caused stress and anxiety more exaggerated and disorganised her day to day behaviour. [19] The mother’s problem, he said, was therefore not as simple as an anxiety disorder. His opinion, in his report, was that a constellation of problems had probably affected the mother’s parenting especially in that, “impulsive, disorganised and inpatient thoughts and actions have occurred.” He spoke of what he described as the “several fairly alarming propositions” which the mother had put in writing including that because of her financial difficulties she might have to take X with her to a refuge.

    [19] Single Expert Report of Dr B dated 4 February 2011, page 29.

13. Dr B outlined what he had been told about the mother’s current medication and expressed the opinion that it was within the appropriate range but that the mother would probably benefit from a review at the Mood Disorders Clinic at the (omitted) Hospital “to fine tune this.”[20] He also recommended the benefit of counselling using a cognitive behavioural approach, which he thought may improve the mother’s impulse control and judgment. Dr B expressed the opinion that, given the number of emotional crises the mother had experienced and because she has resorted to substance abuse quite frequently, he was of the view that the mother remained vulnerable to further relapses.[21]

    [20] Single Expert Report of Dr B dated 4 February 2011, page 29.

    [21] Single Expert Report of Dr B dated 4 February 2011, page 30.

14. In cross examination, Dr B said that while the mother’s presentation had some ADHD-like features and that in the past a professional whom she had consulted diagnosed her as having ADHD, he thought that diagnosis was wrong. His evidence at hearing was that his diagnosis of the mother as having personality traits of hypomania was not an illness as such and that there were psychiatric treatments which could help people “tone it down a little bit.” He said that there was a possibility of the mother using a medication such as Lithium, or Epilim, which was used for people with Bipolar Disorder and that quite low doses could potentially assist her. He said that this might assist the mother calm down, although the medication would not work for everybody and that whether it would assist was a “significant unknown.”

15. At hearing, Dr B commented that the father when he saw him had argued strongly that the mother had Bipolar Disorder, and was very persistent about this. Dr B commented that currently Bipolar Disorder “was an overused term.” He agreed that there was material which suggested that Bipolar Disorder was something that needed to be considered, and then excluded, as he had done. In his opinion, the father believed that the mother has an undiagnosed mental illness and that this explained a lot of her behaviour. He reported that one of the things that very much concerned the father was what he viewed as the mother’s reckless behaviour, including reckless things which she said. Dr B said, in his view, the father was not correct in thinking that the mother had Bipolar Disorder but nevertheless the concern the father expressed about the mother’s behaviour did reflect a problem which, in his opinion, she had.

16. During cross examination Dr B also expressed a concern about the mother’s difficulty in being able to contain her behaviour and contain what she says. This, in his opinion, was a “big source of instability” and a significant concern. When being cross examined by the mother’s counsel, Dr B became more explicit in his concerns about the mother’s parenting. He expressed the opinion that, there were more risks in her parenting than in that of the father. His view was that the father had the better potential parenting capacity, even given the criticisms he had made about him, especially in relation to the videotaping. Dr B’s opinion was that the father was “more stable and even” than the mother. He made positive observations of the father with his daughter, Y, who also attended the assessment with her parents.

17. Dr B was questioned about the letter that the father had written to the Child Support Agency in about April 2010. In that letter the father said that the mother was suffering from a specific mental illness that caused her to behave strangely. He complained that she was renovating her house and increasing her mortgage and listed the renovations she was making to the house including creating a self contained unit, putting in flashy chandeliers and a large sand pit, trampoline and cubby house. The father said at hearing that he should not have written the letter and that it was probably not one of his “finer moments”. Dr B, when questioned about the letter and what it indicated about the father’s character, particularly in the assertion by him that the mother had a mental problem, again expanded on what he had written in his report by stressing that he thought that the mother did have a problem and that she has had periods when she has had quite significant problems and that beneath that, there was a level of instability which he said was character based. He commented that the father was wrong in the terminology he used, but that there was a problem in the way the mother related to people and in the way she related X. He expressed the opinion that people who were a bit hypomanic had an enormous capacity to get things done, and often jumped from one thing to another. He described the mother when he saw her, as “revved up”. Dr B was asked by the mother’s counsel if Lithium could be highly effective if it was to be introduced into the mother’s treatment. Dr B responded that it could easily be that a good 12 months would be needed to sort out whether mood stabilising medication was going to be effected and that during that time dosages would need to be adjusted.

18. Dr B was asked about the inconsistencies between the mother’s account of her alcohol consumption and what was contained in the notes of various mental health providers. He commented that when he had a choice between what people told him about their alcohol consumption at assessment, and what they had told to people they have seen in relation to drinking problems, his practice was to rely on the records. He said that he was aware of the discrepancy when he spoke with the mother.

19. Dr B was cross examined for some considerable time. His evidence was not shaken in any way.

20. The mother responded to Dr B’s report in her affidavit. She said that some of the history she gave had not been correctly reported. She disputed some of the history which the father had given to Dr B. She thought that her consumption of alcohol was reported to be greater than that acknowledged by her. None of these things appear to be significant in terms of Dr B’s opinion as expressed in the report and at hearing. The mother did not appear to take issue with other matters reported above. She said in her affidavit[22] that she felt some relief when she read the report because, for the first time, she believed that a correct diagnosis had been made. Further, in her affidavit, the mother says that she telephoned Dr B to discuss his recommendations that she attend the (omitted) Mood Disorders Clinic. She said that because of the waiting list there she contacted the (omitted) Mood Disorders Clinic where she met with Dr V. She said that she was impressed with Dr V and proposed to follow her advice about adjustments to her medication.

    [22] Mother’s affidavit sworn 21 February 2011, paragraph 130.

21. When the hearing was next listed on 16 June 2010, the mother was given leave to file in Court an affidavit which she had sworn on 7 June 2011. In that affidavit the mother said that Dr V also felt that she was hypomanic and initially prescribed Epilim. The mother said that this had some nasty side effects and that as a result, Dr V recommended that she change to Lithium. The mother said that she took this and found that the side effects were not debilitating.[23] She said, in this affidavit, that she did not intend to stop taking the medication prescribed or discontinue consulting Dr S. She said that she believed that her symptoms of hypomania were managed very successfully with the doses of Lithium and Seroquel she was taking at the time. She said that she liked not being hypomanic and not suffering from anxiety and stress which was exhausting. She said that she no longer spoke quickly, felt rushed, had fast moving thoughts, or felt hyperactive in any way. She said that she no loner felt anxiety and lived “in a perfectly calm world due to the Seroquel.”[24]

    [23] Mother’s affidavit sworn 7 June 2011, paragraph 4.

    [24] Mother’s affidavit sworn 7 June 2011, paragraph 5.

22. The matter was listed for its final day of hearing on 11 August 2011 when further medical records were before the Court. The mother had ceased attending upon Dr V. Dr S’s records indicate that she told her on 6 May 2011, the day before the affidavit referred to above was sworn, that she had ceased seeing Dr V as Lithium clouds her concentration. The mother told Dr S that she was taking less than the recommended dose, and was advised by Dr S not to reduce the dose further.

Section 60CC(3)(j) requires the Court to consider any family violence involving the child or a member of the child's family.

1. There are no relevant issues in this matter.

Section 60CC(3)(k) requires the Court to consider any family violence order that applies to the child or a member of the child's family, if the order is a final order; or the making of the order was contested by a person.

1. There are no relevant issues in this matter.

Section 60CC(3)(l) requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. There is little doubt that it would be in X’s best interests to make an order that would be least likely to lead to the institution of further proceedings. Overseas travel, unfortunately may be an issue in the future. However, for the reasons outlined later in the judgment the Court is not prepared to make orders allowing either of the parents to travel overseas with X at this time.

Section 60CC(3)(m) requires the Court to consider any other fact or circumstance that the court thinks is relevant.

1. The relevant circumstances have been considered in the judgment.

Section 60CC(4) requires consideration of the extent to which the child’s parents have taken the opportunity to participate in decisions about the major long term issues in relation to the child, the extent to which the parent has facilitated or failed to facilitate the other parent’s participation in making such decisions or in being able to spend time with the child or communicating with the child and the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

1. The mother did not tell the father when she made an appointment to take X to an audiologist until she subsequently showed him the report. The mother has recently ignored the father’s views about enrolling X in school. She has also threatened, in at least one email, to move, or even take X to (country omitted). While the Court is concerned about the unilateral actions of both parents, the Court finds that the mother’s pattern of behaviour is such that she is more likely than the father to make decisions about X without facilitating the other parent’s involvement in such decisions.

2. The father pays child support as assessed, although financial issues have been a continuing source of dispute between the parents.

Parental responsibility

1. Section 61DA(1) states that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child

2. Section 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. The presumption may be rebutted if there is evidence which satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility for them.

3. The parents each propose orders for sole parental responsibility for X. The Independent Children’s Lawyer proposed that the parents have equal shared parental responsibility for X except in relation to heath, for which the father should have sole parental responsibility. The father proposed a mechanism for the mother to be given notice of decisions that he was proposing to make and an opportunity for the mother to respond to them. The mother said in cross examination that she was happy to do the same, although she also agreed that she wanted to make decisions with no input from the father whatsoever.

4. This is not a matter where there has been family violence or abuse of a child. Both parents submit that an order for equal shared parental responsibility would not be in X’s best interests. The mother said in her submissions that for the father to have sole responsibility for X’s health could be “quite dangerous.” She said in cross examination that there had been an enormous amount of conflict between she and the father over nearly three years, that they could not agree on things and that this had caused conflict. She said that this was the reason she sought an order for sole parental responsibility as well as the father being “quite neglectful.” She said that she wanted to eliminate the possibility of X, whom she referred to as “my son”, being taken again.  Paradoxically, in her submissions she asserted that there was no conflict at all. This was in the context of the mother being asked questions about difficulties which could potentially arise from her proposal that the father spend time with X each Saturday. The Court considered that this response was self serving in the context of the question asked of her.

5. The father’s counsel submitted that there was a high level of distrust between the parents and that because of the problems in the level of communication between the parents, there should be an order for sole parental responsibility in the father’s favour to protect X from the conflict between his parents. Dr B’s assessment was that there was a deep distrust between the parents, that this had been the situation for some time and that he saw no indication at all that it was going to change. His opinion was that the father’s judgment would probably be good about major decisions. Certainly the mother was prepared to make a decision about X’s schooling which appeared to reflect her needs, when on the evidence before the Court, the needs of X required more considered decision making than she was prepared to acknowledge.

6. Decision making about health related matters has been a major area of dispute between the parents. The Court has found that the evidence does not support the mother’s assertion that the father is neglectful of X’s health.  The mother, on occasions, has retained X when he should have been in his father’s care because she asserted that he was ill. The father gave evidence, which the Court has accepted, of taking X to the doctor when the mother asserted he was ill, only to be told that X had no significant ailment.  The Court infers from Dr B’s evidence that the mother’s level of anxiety means that she could become, to use his expression “over excited” about health issues. At the same time the mother has acted appropriately when she arranged for X to be taken to hospital on two occasions during the night. Dr B’s evidence about decision making and health was fairly qualified. After consideration, he expressed the view that that he did not see that there should necessarily be any great detraction from the ordinary degree of shared parental responsibility that lies in health issues and that the mother should not be denied an opportunity to participate in decision making about health.

7. It is inevitable if X is spending time with either parent, and there is no proposal, or recommendation, that he should not be spending at least something close to substantial and significant time with each parent, that medical emergencies could well arise.  Each parent needs to be able to respond appropriately to these situations. There is no evidence to indicate that either of the parents will not be able to do this. Either parent may consider that X is too ill to attend school on a particular day. On the history, the mother is more likely to decide that this is the case than the father. It would be impractical that she involved the father in a decision about this before school, although it is decision making on occasions such as this which has been the cause of considerable conflict. If X was to spend more time with his father, the conflicts about this are likely to be reduced.

8. It would not be in X’s best interests if decisions about such major health issues were deadlocked, for example if there had been a referral to a medical specialist and a particular treatment was recommended. Given the hostility and distrust between the parents there is a potential for this. Dr B’s opinion was that the father’s judgment is generally likely to be sound. The Court has found that he is more likely to make considered decisions than the mother. For these reasons, this is an area of health care in which it would be in X’s best interests that he be able to make the final decision after consultation with the mother. Special provisions should also apply to any continuing counselling for X. The father has taken X to Ms L. It may well be that continuing counselling would be required for X. Dr B expressed the opinion that Ms L appeared to him from his communication with her to be sensitive to issues impacting on X. The mother declined to continue her involvement with Ms L because she thought she had formed a bias against her. Dr B’s evidence was that Ms L’s concerns about the mother were similar to his concerns. He thought that she showed good clinical judgment rather than bias. Again, he was not challenged on this. The Court proposes to make an order that the father should be responsible for any consultations for X with psychologists, psychiatrists or other health professionals for counselling or therapy

9. In relation to education the parents have agreed to an order that X should continue to attend his present school for the remainder of his primary school education which will be for a further six years. This addresses major educational issues in the foreseeable future.

10. Taking all these factors into account, the Court proposes to make an order for equal shared parental responsibility, with the qualifications in relation to decision making about health set out above.

11. Given that there will be an order for equal shared parental responsibility, as explained in Goode & Goode [2006] FamCA 1346 the Court is required to consider the provisions of section 65DAA(1):

    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:

    (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

    (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

    (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

12. Section 65DAA(2) provides that if an order is made for equal shared parental responsibility and the Court does not make an order for the children to spend equal time with each of the parties, the Court must consider whether the children spending significant and substantial time with each of their parents would be in their best interests and if that would be reasonably practicable.

13. Section 65DAA(3) provides that a child will be taken to spend substantial and significant time with a parent only if:

    (a) the time the child spends with the parent includes both:

    (i) days that fall on weekends and holidays; and

    (ii) days that do not fall on weekends or holidays; and

    (b) the time the child spends with the parent allows the parent to be involved in:

    (i) the child's daily routine; and

    (ii) occasions and events that are of particular significance to the child; and

    (c)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.

14. Section 65DAA(5) which sets out what the Court must have regard to in considering what is reasonably practicable, is as follows:

    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

    (a) how far apart the parents live from each other; and

    (b) 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

    (c) 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

    (d) the impact that an arrangement of that kind would have on the child; and

    (e) such other matters as the court considers relevant.

15. The High Court in MRR & GR [2010] HCA 4 has confirmed that the Court must consider each of these questions, that is, is it in the child’s best interests, and is it reasonably practicable, before an order can be made for equal time or substantial and significant time.

16. It was the firm opinion of Dr B that X required a “home base” where he spent most of his time rather than an arrangement where he spent equal time with each of his parents. His evidence that this was in X’s best interests was not challenged. There is support for such an opinion in the evidence before the Court and the Court finds an order for equal time would not be in X’s best interests. Neither would it be reasonably practicable, particularly taking into account the matters set out in sub section 65DAA(c) concerning the parents’ current and future capacity to communicate.

17. The Court is required to consider whether an order for a parent to spend significant and substantial time with X is in his best interests. The Court has found that X has a close relationship with each of his parents, although it was accepted by Dr B that his mother was his primary attachment figure. X is too young for any views of his to be given weight.

18. The Court has found that the mother is less likely than the father, to encourage a close relationship between X and the other parent. Both parents care very much for X. Dr B expressed the opinion that both parents have been “appropriately and broadly involved in X’s care.”[28] However the Court has found that the mother’s capacity to care for X’s needs including his emotional and intellectual needs, is impacted because of some of her personality characterises which means that she is less likely than the father to be able to offer stability to X. She has been over reactive to the father and impetuous in many of her actions. She has had difficulty containing her behaviour and what she says. The Court has accepted the assessment of Dr B that the mother has had difficulties in focusing on X’s needs and that her parenting environment has had “destabilising components for X”. The basis of such an assessment has been set out in detail in the judgment. The issue of X’s enrolment at school in particular did not reflect well on the mother’s attitude towards parental responsibility.

    [28] Single Expert Report of Dr B dated 4 February 2011, page 28.

19. This is not to say that there have been no issues about the father’s parenting capacity and his ability, like the mother, to expose X to the parental conflict. This was most marked in his videotaping of the mother’s attendance at his home to seek the return of X. The mother has a personality which Dr B described as being potentially overwhelming, especially to a child. The father in his way has overacted to some of the mother’s responses to him. The mother has reasonable cause for complaint about the father’s communication with the Child Support Agency and with the Department of Community Services. It appears that the father gave the mother little, if no notice, of steps taken following Y’s birth which resulted in a reduction of benefits paid to the mother. The mother believed that he misrepresented the care arrangements, though they have been so changeable, usually at the mother’s request, that the Court cannot be certain about this. The father, as Dr B observed, is probably quite stubborn.

20. However these concerns are relative as discussed. The Court has accepted the evidence of Dr B that the mother is less likely to be able to provide stability for X than his father.  

21. For the reasons set out above, and in more detail elsewhere in the judgment, the Court finds that it is in X’s best interests that he live with his father but spend significant and substantial time with his mother. The father proposed that X spend time with his mother each fortnight from Friday after school until before school the following Monday and for half of the school holidays. Dr B’s opinion was that X should spend time with his mother on alternate weekends from Friday after school to Monday before school and also one overnight in the alternate week.[29] He pointed to the close attachment X has to each of his parents and the importance for him of spending a reasonable amount of time with the other parent. He though that this should be arranged so that there was minimal contact between the parents and that changeover should be from school where possible. Dr B observed in his report that X “showed symptoms of stress including soiling and clinging behaviour as well as non compliant behaviour” which had not been “entirely confined to his mother’s home.” Dr B’s opinion was that X had probably been a little attention seeking and a little insecure at his father’s home as well as his mother’s home particularly following the birth of Y.[30] His opinion however was that X would adjust to the change in parenting arrangements. The father preferred that X’s time with his mother be in one block period each fortnight. It seems apparent that the recommendations of Dr B took into account that there should not be a long period of time between the occasions when X spent time with his mother. This is an important consideration. The Court proposes to follow his recommendations.

    [29] Single Expert Report of Dr B dated 4 February 2011, page 31.

    [30] Single Expert Report of Dr B dated 4 February 2011, page 27.

Other Issues

1. The father proposed various orders relating to the mother’s future medical treatment. These included orders that the mother be required to submit to attendance at the Mood Clinic at (omitted) Hospital each three months to monitor her mental health and drinking and that she comply with “all reasonable directions about treatment.” The father proposed that any medical practitioner which the mother attended upon be authorised to contact him if he or she formed the opinion that the mother’s parenting capacity had been compromised. The father also proposed that the mother attend upon a psychiatrist nominated by Dr B and cause the psychiatrist to provide quarterly written reports about the mother’s compliance with treatment to the father and the Independent Children’s Lawyer.

2. It is difficult to see how the making of any such orders would be reasonably practicable or would assist the implementation of the orders which the Court proposes to make and which the Court has found to be in X’s best interests. Dr B observed that it was in the father’s nature that if he thought there is a problem and if there was room in the orders for him to exercise judgment about whether it was appropriate for X to see his mother, that he may well exercise his judgment in that way. This risks a continuation of the past dynamic between the parents which has not been in X’s best interests.

3. Dr B’s evidence was that the mother does not have a mental illness as such. His evidence was that her personality characteristics which cause her to behave in certain ways could be assisted by medication which could well have a calming effect on her. At the same time his evidence was that various medications which might assist the mother needed to be trialled and adjusted over a significant period of time. He considered that the mother was motivated to address her symptoms and that she would be quite open to medication which would calm her down. However his evidence was also that particular medications, including Lithium, did not work for everyone and that whether a particular medication was going to have the desire effect was “a significant unknown at this point.” Dr B was asked whether he thought that there were supports or therapies which the Court could consider putting in place for the mother if X moved into the primary care of his father. He responded that such a change would be very stressful for the mother and that he thought it would probably be helpful for her to be seeing a psychologist or psychiatrist.

1. The father’s counsel in submissions contended that if the “practical safeguards” proposed by the father could not be put in place, then X’s time with his mother should be constrained in case the mother experienced the problems to which Dr B had referred in his evidence. Dr B, however, did not recommend that the mother’s time with X be conditional on requirements such as those proposed by the father. The father needs to be more realistic about the complexities of addressing the mother’s personality symptoms by medication He needs to be more flexible and less controlling in his approach, to avoid, as the Court has explained, repeating the dynamics of the past.

2. Each of the parents sought orders that they be able to travel overseas with X. The father sought an order restraining the mother from removing X from the Commonwealth of Australia without the consent of the father or an order of the Court. The mother sought an order that she be able to take X to (country omitted) for a holiday and that the parents ensure that X is to have a current passport.

3. The father said in his affidavit sworn on 14 February 2011 that it was his intention to travel overseas with his wife and their children for a holiday once every year or two years. He said that he intended to travel to (country omitted) and (country omitted) on some occasions as his wife’s family live in those countries. The father and his wife have already taken Y, but not X, to (country omitted) to visit family members there. He said that he wished to take X on these holidays so that he could experience the cultures of these other countries. The father gave no other evidence about this proposal in his affidavit.  It was submitted on behalf of the father that he was a director of a company based in Australia, that his family is here and that he owns a home here.  The father’s in his affidavit[31] discussed X’s relationship with his paternal grandfather but makes no reference to any other members of the father’s family. He did not address any concerns the mother might have, or offer any security.

   [31] Father’s affidavit sworn 14 February 2011.

4. The mother opposes X’s travel to (country omitted) with his father. She says that the father is a flight risk. She submitted that if the paternal grandfather died the father would not have the strong family tie to Australia which he presently. The mother said that the father had abducted X before and that if he took him to (country omitted), she could not afford the cost of getting him back. Certainly, the mother has been required to obtain an order for X’s return. There is no reason to doubt her evidence that her financial resources are strained. She points out the significant connection to (country omitted) in the father’s family. Her concerns cannot be dismissed.

5. The maternal grandfather lives in (country omitted). The mother said that her parents live in (country omitted).  Presumably she meant her father and step mother. She said she would like them to see X more than once a year. She said that her step grandmother who also lives in (country omitted) is too old to travel. The mother’s evidence is that her father has visited her in Australia not so long ago.

6. The father refers to a notation in Dr S’s notes that the mother said that she was considering steps she might take to circumvent any orders made by the court.  The father also refers to an email from the mother in which she said “if you don’t give me money then I’m going to have no choice but to go to (country omitted).” The mother when questioned about this said she did not mean that she would take X to (country omitted). The mother later said that she and the father had a communication about child support and tat she said to the father “if you let me move to (country omitted) then you won’t have to.” Either way it is not unreasonable for the father to perceive this as a threat.

7. The relevant countries are members of the Convention on the Civil Aspects of International Child Abduction. However there is high level mistrust between the parents. Each has acted unilaterally in the past. Neither has given any significant evidence which addresses the flight risk alleged by the other or how it might be addressed. The Court proposes to continue the present order restraining each parent from taking X overseas.

8. The father sought that various orders be made restraining the mother’s behaviour, including approaching or entering the father’s premises at (omitted).  The mother indicted that she did not oppose that order as she had no intention of going to the father’s home. The mother sought an order that the father not attend her home with his wife

9. The Independent Children’s Lawyer sought an order that the mother be restrained from consuming alcohol at least twelve hours prior to, and during any time X spends with her. There is evidence in this matter that the mother has abused alcohol, especially at times when she is under particular stress. X should be protected from this. The Court proposes to make an order restraining the mother’s use of alcohol when X is in her care.

10. The Independent Children’s lawyer sought an order that each party pay half the costs of the Independent Children’s Lawyer which is in the sum of $12,486.45. The mother indicated that she opposed the making of an order that she contribute to the costs of the independent Children’s Lawyer. It was indicated by the father’s counsel that he would not oppose such an order provided that it was clear that he was responsible for only one half of the total costs of the Independent Children’s Lawyer.

11. In considering such an application for costs the provisions of section 117 apply. In particular S117(2) provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make such costs order as it considers just subject to subsections (2A), (4) and (5). Subsection (2A) requires the Court to have regard to the financial circumstances of each of the parties to the proceedings. The father has indicated that he is able to meet half the costs. The mother is presently working part time (occupation omitted). The Court accepts her evidence that she is presently suffering financial strain. In these proceedings this is the most significant of the factors set out in subsection 117(2A). The Court accordingly proposes to make an order that the father pay one half of the costs of the Independent children’s Lawyer. There will be no order for the mother to contribute to the Independent children’s Lawyer’s costs.

I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of Walker FM

Date: 12 October 2011