KREUZER & KREUZER
[2013] FMCAfam 223
•15 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KREUZER & KREUZER | [2013] FMCAfam 223 |
| FAMILY LAW – Parenting – mother’s mental illness – capacity of each parent – parental responsibility. |
| Family Law Act 1975 (Cth) Federal Magistrates Court Rules2001 Federal Magistrates Court Regulations |
| Applicant: | MS KREUZER |
| Respondent: | MR KREUZER |
| File Number: | MLC 2883 of 2012 |
| Judgment of: | McGuire FM |
| Hearing dates: | 21 December 2012 30 January 2013 |
| Date of Last Submission: | 22 February 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 15 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Horsfall |
| Solicitors for the Applicant: | Patrick Cash & Associates |
| Counsel for the Respondent: | Mr Thomas |
| Solicitors for the Respondent: | Thexton Lawyers |
ORDERS
That all previous orders in respect of the children [X] and [Y] both born [in] 2010 be discharged.
That the parents have equal shared parental responsibility for the children, [X] and [Y].
That the children, [X] and [Y], live with the father.
That the children, [X] and [Y] spend time with and communicate with the mother as follows:
(i)Weekly between Monday at 9 am and Tuesday at 6 pm;
(ii)Such other times as may be agreed between the parties in writing;
(iii)For the purposes the children’s time with the mother, changeovers occur at the home of the father and paternal grandparents with the paternal grandparents being enabled to facilitate such changeovers in the absence of the father;
(iv)The children’s time with the mother is conditional upon the mother attending upon her psychiatrist, Dr O, or if Dr O is unavailable or unwilling to continue to provide assistance, then such other psychiatrist as is recommended and referred by the mother’s general practitioner and for the mother to attend such psychiatrist not less than once per month until the psychiatrist stipulates otherwise in writing such to be provided to the father and for the mother to comply with all directions of her psychiatrist.
(v)Leave is granted for the father to provide a copy of these orders and a copy of the family report of Dr R dated 16 November 2012 to the mother’s psychiatrist .
(vi)That for a period of six calendar months from the date of these orders, the children’s time with the mother will take place with the children sleeping at the residence of the maternal grandparents and with the actual presence of either of her parents or her adult brothers between 6 pm and 8 am on each occasion.
That within seven days of the date of these orders, the mother provide her psychiatrist (with a copy to the father’s solicitors) written authorisation allowing the psychiatrist to notify the father (with the father to provide the psychiatrist with details of his address and telephone contact numbers) should the mother fail to attend at any consultation with the said psychiatrist and/or fail to adhere to any prescribed course of medication and/or be suffering symptoms or manifestations or schizophrenia in the opinion of the said psychiatrist.
That the father have liberty to apply in respect of the children’s time with the mother in the event of him receiving relevant advice from the mother’s psychiatrist.
That should there be further issues between the parents in respect of the living arrangements for [X] and [Y] then the parent’s must first attend mediation with Relationships Australia or any other organisation agreed by them before either brings an application to this Court save and except for Contravention proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Kreuzer & Kreuzer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 2883 of 2012
| MS KREUZER |
Applicant
And
| MR KREUZER |
Respondent
REASONS FOR JUDGMENT
These proceedings concern the twin children of the parties, being [X] and [Y], both born [in] 2010. The children are thus just two years of age.
The applicant mother seeks orders whereby the children live primarily with her on five nights each week. She seeks an order for equal shared parental responsibility.
The respondent father proposes that the children live with him and that he have sole parental responsibility. He argues that [X] and [Y] spend time with the mother on each Tuesday and Saturday from 10 am until
4 pm, such time to be supervised by one or other of her brothers Mr J or Mr M. The father further seeks an order that the mother continue therapy or consultation with a psychiatrist to address what he alleges to be her schizophrenia. He seeks injunctive orders as follows:
(1)That the mother not enter or attempt to enter the children’s places of education;
(2)That the mother not communicate or attempt to spend time with the children outside of any orders without the written consent of the father;
(3)That the mother be restrained from discussing these proceedings with the children or showing the children any document filed in these proceedings;
(4)That the mother be restrained from entering or attempting to enter the children’s place of residence with the father or “frequenting the general vicinity of those places”.
(5)That both parties be restrained from abusing, belittling, insulting, rebuking or otherwise denigrating the other party or the other party’s associates.
Both parents are 31 years of age. The mother emigrated from East Timor with her family in 1990. The father and his family came from Malaysia in 2004. They married in 2010 and separated in October 2011. The parties and hence the children seem to have lived predominantly with the husband’s parents during the course of this short relationship.
The children have lived with the father since separation. Initially, the mother saw the children on three separate days each week. There was a gradual reduction of time down to about six hours per week and interim orders were made on 19 October 2012 whereby the children spend time with the mother each Tuesday and Saturday between 9.30 am and 5 pm, such time now being supervised.
The mother concedes that she has suffered from a mental illness. She does not necessarily concede or agree with the diagnosis of schizophrenia apparently made after an episode and admission to a psychiatric unit in 2007. She now lives with her own parents. The mother has tertiary qualifications in [omitted] but has most recently been unemployed or working in a [omitted].
The father works as a [omitted] on Monday mornings and Tuesday evenings. He works in a [omitted] on Saturdays and Sundays from 4 am until about 12 noon.
The major issues in this matter and apparent from the evidence are the following:
(1)The capacity of the mother to care for the children, with reference to her historical and current psychiatric condition, if any?
(2)The capacity of the father to care for the children given his work commitments;
(3)The mother’s claims that she is the victim of concerted control at the hands of the father and his parents with examples such as being forced to change her faith and change her name and that family violence features in his household.
The mother argues that she has the capacity to care for her children. She says that she does not suffer any ongoing symptoms of a psychiatric illness and, in any event, has regular contact with her medical practitioner. She says that she has been subjected to influence and control at the hands of the father and his family, such that it would not be in the children’s best interests to be in his primary care. She argues that the father’s own capacity to care for the children is compromised by his employment and he thus must delegate primary responsibility to his own parents.
The father says that the children are settled and progressing well in his care. He argues that he has the support of his extended family and that the children have consistently lived within that household. He argues that the mother continues to manifest symptoms of her schizophrenic illness including delusions. He argues that the mother either will not acknowledge her illness or chooses to hide the fact from her medical practitioners and this Court for fear of losing primary care of the children.
The mother relied on her own affidavits filed 3 April, 9 July and 19 October 2012. She also adduced evidence from her most recent general practitioner, Dr A and a psychiatrist, Dr S. The report of Dr S arises from an assessment of 14 June 2012. The mother and each of her witnesses were cross-examined.
The father relied on his four affidavits, filed 10 May, 18 October, 26 November and 18 December 2012. The paternal grandfather filed an Affidavit affirmed 18 January 2013 and was cross-examined.
Due to some difficulties with the estimates of time for the trial in this matter and availability of witnesses, the trial proceeded over four days – being 19 December 2012, 30 January, 18 February and 22 February 2013.
The Court also had the benefit of a Family Report from Dr R and dated 16 November 2012. Dr R has social work qualifications. She was cross-examined by counsel for each of the parties on the observations, conclusions and recommendations in her report.
The Law
I have before me issues of parental responsibility for [X] and [Y] and I am to make orders as to their living arrangements. The orders that I am asked to make are parenting orders. It follows that I am to have the best interests of [X] and [Y] as my paramount consideration pursuant to s.60CA of the Family Law Act 1975, (“The Act”).
Section 60B of the Act sets out the objects and the principles underlying those objects, of part VII of the Act as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Act provides a presumption that parents have “equal shared parental responsibility” for their children. This responsibility would normally see parents cooperatively making important decisions in their children’s lives in matters such as education, religion, medical procedure and similar. The presumption under the Act may be rebutted by evidence satisfying the court that it would not be in the best interests of the children for those parents to exercise equal shared parental responsibility[1]. Alternatively, the presumption will not apply if there is evidence that a parent or a person living with that parent has engaged in family violence or abuse of the child within the definitions set out in the Act[2].
[1] Section 61DA(4)
[2] Section 61DA(2)
In the matter now before me the father seeks an order for sole parental responsibility, arguing that the presumption is rebutted as being contrary to the children’s best interests. The mother proposes an order for equal shared parental responsibility.
If I determine that the presumption applies and is not rebutted then I must follow a statutory course of consideration. Firstly, I must consider whether the children spending equal time between their parents is both in their best interests and reasonably practicable. If the answer to either of these questions is in the negative then I move to consider whether the children spending “substantial and significant” time with each of the parents is both in their best interests and reasonably practicable. “Substantial and significant time” is defined in the Act[3] as:
For the purposes of subsection 2, a child will be taken to spend substantial and significant time with a parent only if:
a) the time that the child spends with the parent includes both:
1) days that fall on weekends and holidays; and
2) days that do not fall on weekends or holidays; and
[3] Section 65DAA(3)
b) the time the child spends with the parent allows the parent to be involved in:
1) the child’s daily routine; and
2) 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.
In considering the notions of either equal time or substantial and significant time, I am to consider whether any proposed regime is “reasonably practicable”. The Act[4] gives assistance in this regard as:
[4] Section 65DAA(5)
(5) 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.
I am therefore to determine the best interests of [X] and [Y], both in respect of issues of parental responsibility and in their living arrangements between the parents. In doing so, I make mandatory reference to the considerations set out in section 60CC(2), (3) and (4) of the Act. Those considerations are divided into two “primary” considerations at section 60CC(2) and numerous “additional” considerations in section 60CC(3) and (4). It is important to note, however, that my consideration is not a hierarchical one in the sense of relevance or importance of the section 60CC factors. Various of those factors will attain greater importance given the probative evidence and the proposals of the parties in each particular matter.
Section 60CC factors.
Section 60CC(2)(a) - The benefit to the children of having a meaningful relationship with each of the child’s parents.
The authorities now make it clear that the task for the Court here is to consider the qualitative nature of the children’s relationship with their parents in a prospective manner. That is, “meaningful” is seen as a qualitative time and is not necessarily related to quantity of time spent between child and parent. Similarly, the aim of the orders is to provide a relationship into the future. Obviously, however, the court will need to consider the current nature of the children’s relationships with each of their parents in formulating orders for the future.
The evidence of Dr R, the family reporter, from her observations, is that the children have an attachment with each parent. Dr R withstood a challenge from counsel for the father who suggested that there was a primary attachment for these young children with the father. It is reasonable to expect, on the evidence, that [X] and [Y] have bonded to an extent with each of the parents, and other relevant adults in their household, but that the bonding and attachment processes are continuing. To this end, Dr R confirmed my understanding of the consistent sociological thought that children’s attachments and bonds are assisted by frequency and regularity of contact and exposure to relevant adults.
Section 60CC(2)(d) – the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
The father argues his case in part that the mother’s schizophrenic illness manifests in unpredictable and, at times, angry behaviour highlighted by mood swings and delusions. This issue is addressed in detail below in respect of the relative capacities of the parents to attend to the children’s needs. Nevertheless, the father’s affidavits are littered with examples of his allegations in respect of the mother’s behaviour, as for example, at paragraph 64 and 65 of his affidavit, filed 23 November 2012, where he says:
On 21 February 2011, I prepared 2 bottles of baby formula in order to feed the children as they were crying. I was feeding [X], and I woke the Applicant from her sleep and asked her to feed [Y]. The Applicant woke up with a foul temper, walked into thee room, took the feeding bottle and threw it at [Y], who was lying helplessly on the bed. The Applicant started screaming at the children and hurled abuses at them. I state the children were just 2 months old during that incident. My view is the Applicant is completely incapable of taking care of the children.
On 15 October 2011, the Applicant again lost her temper, started screaming and hurling abuses at us, while my parents were holding the children in their arms. The children started crying when they heard the Applicant’s angry voice. My Parents did not retort back. Instead they covered the ears of the children so that they did not feel scared. The Applicant abused my father by saying that my father only knew how to work, but did not know how to enjoy life. The Applicant wanted my parents to act according to her orders and wanted my father to stop going to work and sit at home. The Applicant wanted my parents to give her everything, claiming that it the Timorese way of life. She said that she would be the head of the family and every one had to listen to her. She said that she knew that my parents loved the children very much and she threatened to take away the children from their care if they did not oblige. She said that she was the mother of the children and had every right to do whatever she wanted with the children. She further stated that the law in Australia protected women and she would get her lawyer to do it for free of charge. My father replied to her by stating the words to the effect “Sorry this is Australia and not East Timor. We aren’t Timorese. Living in Australia we adapted to the life style of Australia and not any Timorese way. We are not rich people and we have nothing to give you”. Hearing this, the Applicant walked out of the house screaming that she did not want to live with our family and did not want the children. She slammed the door and left the house. I tried to calm her down but she remained adamant. The Applicant behaved fiercely and kept telling me that she not love me anymore and I was not the right partner for her. She said that she would be happier if she led a single life. Thereafter, the Applicant abandoned my family and my children. My parents cried looking at my children and stated the words to the effect “grandpa grandma will always he here for you”.
The mother alleges controlling behaviour towards her from the father and his family, in particular her father-in-law. She says that she was obliged to change her Christian name. She claims she lacked privacy within the household. She says that she was expected to change her religion from Buddhist to Christian. She says she was denigrated, belittled and prevented from socialising independently of her husband’s family. She deposes to family violence. At paragraph 10 of her affidavit, filed 3 April 2012, the mother says:
Late one night, my husband was feeding [X]. She was crying and crying and crying and would not feed. I told my husband to leave for a while as she was too distressed to feed. I took her bottle and threw it onto the bed. My husband became angry and lashed out at me hitting me on the bottom. I got dressed and was about to leave the house. My father in-law tried to stop me from leaving the home by pushing me into the wall. I was waving my hands in front of him to keep him away from me and my fingernail accidentally scratched his neck causing him to bleed. The father in law put his arms around my chest and clamped his hands against my spine. He pushed my body against his pushing his hands into my spine. My back has been painful since that incident and I have recently been referred to have an x-ray to ascertain what is wrong with my back.
The mother gives a further graphic example of alleged violence in the father’s household, where she says the father-in-law suffered a serious injury during a violent episode. I am asked to infer, generally, that the children’s best interests are not served by remaining primarily in the father’s care and hence, his household, due to the controlling, denigrating and violent attitudes and behaviour within.
Additional considerations for section 60CC(3)(a) – any views expressed by the children and any factors that the court thinks are relevant to the weight that should be given to the children’s views.
The children are very young and not capable of expressing any views or preferences as to their living arrangements.
Section 60CC(3)(b) – the nature of the relationship of the children with each of the parents or any other persons.
The evidence as to the emotional relationship and attachments of the children with the parents is set out above and particularly on the observations of the family reporter. The children have, however, lived consistently in the household of the father and without the mother in that household since October 2011, with her time most recently with the children being during daytimes only on two occasions per week and such time being supervised. It follows that the father has assumed a primary care role of these children albeit with the assistance of his parents. There is no independent observation of the relationship between the children and the paternal grandparents. Similarly, the children have had the benefit of regular contact with the mother’s extended family although no members of that family gave evidence and were not interviewed by the Family Reporter.
Section 60CC(3)(c) – the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent.
The relationship between the parents is currently a non-communicative one. Each of them does, however, propose that the children continue the relationship with the other parent albeit not a primary one. The mother in her affidavit makes references and allegations against her father-in-law threatening to remove the children from Australia. There is little or no evidence to substantiate these allegations and he was not cross-examined specifically on what would ordinarily be an important and relevant issue.
Section 60CC(3)(d) – the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents or any other child or any other person (including any grandparent or other relative of the children), with whom they have been living.
Whilst the children have been living in stable accommodation with the father and his family for all of their lives, they have regular and frequent contact with the mother. There is no evidence that any change in primary place of living will be detrimental to the children over and above the mere fact of change itself.
Section 60CC(3)(e) – the practical difficulty and expense of the children spending time and communicating with a parent and whether that difficulty or expense will substantially effect the children’s rights to maintain personal relations and direct contact with both parents on a regular basis.
There is no evidence before me that this consideration is relevant to my determination.
Section 60CC(3)(f) – the capacity of each of the children’s parents, and any other person (including any grandparent or other relatives of the children), to provide for the needs of the children, including emotional and intellectual needs.
Each of the parties’ arguments and evidence focuses on the consideration of capacity of the other parent. The evidence adduced in this matter was mainly of a nature critical of the other parent.
The mother argues that the father’s capacity is compromised by his work commitments and also the general controlling nature of his parents, in particular, his father. The father works as a part-time [omitted] on Monday mornings and Tuesday evenings. He works Saturdays and Sundays from 4 am until about 12 noon in a [omitted]. He lives with his parents. They are unemployed and able and capable of caring for the children. Their capacity was not seriously challenged in cross-examination of the father or of his own father although the mother’s affidavit material is scathing in its criticism. Similarly, there was little or no exploration or challenge to the father’s denials of his family environment being a controlling or violent one. There is no evidence of the children suffering any physical or emotional harm whilst in the father’s care. The evidence of the father and of his own father is of a close-knit and supportive home environment for the children.
The mother concedes that she experienced a psychiatric episode after the demise of a previous relationship when she accepts that she suffered from delusions and paranoid episodes. She was an inpatient at the [omitted] Psychiatric Hospital in 2007. The evidence before me suggests that the mother was an involuntary patient, admitted at the instigation of her brother. She, however, denies this to the family reporter at paragraph 21 of that report. Her evidence generally was equivocal about this episode and her admission. I am satisfied however as to the nature of her illness and that the admission was at the instigation of her brother.
In the witness box, the mother conceded a diagnosis of schizophrenia. She was not, however, so forthcoming in this concession or acknowledgement to the Family Reporter. She referred to the medication prescribed to her, which she took for almost two years but unilaterally ceased and apparently without medical advice or notice. The mother claims to have no recurring symptoms and that the medication was “prescribed for only two years”. Dr S’s evidence gave some corroboration to this scenario of the mother’s initial episode being followed by medication for only a limited and specified period.
The mother’s first affidavit was filed with her initiating application on 3 April 2012. That document does not disclose her history of schizophrenia. There are also suggestions on the evidence that the mother has not informed successive medical practitioners of that part of her medical history. Indeed, the father himself says that he was not made aware of the mother’s diagnosis of schizophrenia until disclosure some time into these proceedings. The mother was required by interim orders to provide an affidavit from her medical practitioner in respect of treatment and advice in respect of the diagnosis of schizophrenia. There was not strict compliance with that order. At paragraph 17 of the family report, Dr R observes:
Ms Kreuzer acknowledged that she was aware orders I required her treating practitioner to provide the court within 28 days an affidavit providing details of her ongoing supervision with respect to her psychiatric condition. However, she stated that she was currently waiting for a new solicitor to commence working with her, “we are still working on that”. Ms Kreuzer stated she was currently seeing a general practitioner, Dr A, at the [omitted] Clinic. When asked how often she was attending Dr A, she stated she attended at least once a month, “as soon as I have a cough or don’t feel well, or when I need to have a women’s health check”.
When the writer suggested that perhaps the orders referred to her current mental health being monitored and not her general health, she was unresponsive.
Dr A gave evidence and was cross-examined. She is not intending to continue as Ms Kreuzer’s general practitioner given an admitted lack of expertise in the field of schizophrenia. The thrust of Dr A’s evidence was against Ms Kreuzer having made a full and proper disclosure of her medical history to either Dr A or her colleagues at the medical practice. Ms Kreuzer first consulted Dr A on 23 March 2012 but did not inform the doctor of the diagnosis of schizophrenia until 23 November 2012. Dr A’s evidence is that Ms Kreuzer’s file does not disclose schizophrenia in the medical history. The mother adduced evidence from a psychiatrist, Dr S, whose affidavit was filed 3 August 2012. Dr S, at page 4 of his assessment, reports Ms Kreuzer as:
Ms Kreuzer described approximately a year of depression after the end of her previous relationship with oversleeping, reduced appetite, energy depletion, with suicidal ideation without attempts.
Dr S was obviously armed with the discharge summary from the [omitted] Psychiatric Clinic and references that summary as follows:
According to the discharge summary, she presented with a three year history of deterioration in mental state, with paranoia that her ex-boyfriend and his friends were planting cameras around her house and underneath her skin and recording her every move. She believed it was being broadcast via the internet. She was described as having auditory hallucinations. She was diagnosed with schizophrenia and treated with the anti-psychotic amispulprid 700mg, and discharged on an involuntary Community Treatment Order. She was described as having poor insight. She had follow ups for a year and eased medication after this.
Dr S notes that Ms Kreuzer “adamantly denied”, having any relapse of her illness despite the evidence, made clear to Dr S, of the father of similar delusional and paranoid behaviour during their relationship in 2009. Ms Kreuzer denied any current symptoms both to Dr S and to this court. Dr S’s opinion and recommendations are worthy of inclusion in these reasons and are:
1) Ms Kreuzer has got a history of depression and psychosis in the context of her first relationship. The psychotic symptoms are consistent with the previous diagnosis of schizophrenia.
2) She does not show current symptoms of that illness.
3) It is contentious as to whether she suffered a relapse of that illness during her relationship with Mr Kreuzer. His affidavit certainly leans weight to that proposition, although it appears that he did not seek assistance for her.
4) It is important that she has ongoing supervision by her general practitioner to ensure she maintains her remission and that if any signs of relapse occur, that she is promptly referred either to a private psychiatrist or back to [omitted] Mental Health Services.
5) There is a role for anti-psychotic medication to reduce the risk of relapse. If, indeed, she has had two episodes of that illness, long-term medication should be considered.
6) It is important to note that the current situation with her removal from being the primary caregiver of the children, her level of contact with them, and the circumstances of this, is a major stressor; this may increase her risk of relapse in the future.
7) Ms Kreuzer is well-supported by her parents and is no [sic] showing signs of symptoms of mental illness at this point.
8) I do not see any current impediment to her care of the children in this context.
Significantly, the mother live with her own parents and brothers who currently supervise her time with the children. There was no evidence adduced from Ms Kreuzer’s parents or brothers as to their level of understanding of her condition or their ability to lend support. Similarly, the father was not challenged, or challenged in any detail, as to his assertions in respect of the mother’s apparent delusional behaviour in 2009. Whilst he did not apparently seek medical assistance for his then-wife, his unchallenged observations are similar to the symptoms of paranoia and delusions suffered by the mother in 2007.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions, of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant).
Although these children will potentially have the advantage of multiculturalism through their parents, this issue was not raised to any degree in the evidence.
Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child:
the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
the likely impact any proposed parenting order under this Part will have on that right;
Not Relevant.
Section 60CC(3)(i) - the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
By implication the mother criticised the father’s attitude in pursuing his employment and delegating his parenting of the children. On the evidence before me, such criticism is unjustified. The father works in order to provide financial support for the children. He is their major source of financial support. There is no evidence to suggest he does not otherwise prioritise his actual care of the children.
The mother’s attitude to the responsibilities of parenthood can not be criticised. She has pursued her quest for the children to live with her through difficult personal circumstances.
Section 60CC(3)(j) - any family violence involving the child or a member of the child’s family;
The mother makes allegations of family violence within the father’s household and within the broad definition of the Family Law Act. There are denials from the father and his own father in their Affidavits. There is clearly tension between the mother’s and the father’s households. Both parties relate different versions of a recent changeover involving a child’s singlet. At paragraph 20 of the Family Report Ms Kreuzer is reported as saying:
Ms Kreuzer vigorously asserted “I want to point one thing, I always wanted to be a mother and they took away my children and they made up all these excuses, the main reason I left was the family violence”. When asked to describe the reported family violence, she stated there had been a number of small incidences and believed that she had been too soft hearted and nice to report this to the police. Ms Kreuzer stated that the paternal grandfather “had cut his wrists and there was blood every where, it was on the carpet it was everywhere.” She then requested read her back pain report as she believed that it was part of her evidence as it was written by a specialist but agreed her reported injury had been pushed in the back by the paternal grandfather had not been reported to police. Ms Kreuzer stated “I find it very unfair and I cannot stress enough that the children’s father and grandfather are very violent and the children are not safe to be with them.” At this point in the interview Ms Kreuzer angrily informed the writer “I have not experienced any of these symptoms in the past few years, I have nothing to explain as I am not suffering from anything, what can I explain there is nothing?” Ms Kreuzer’s presentation required the writer to suggest she might find it useful to calm down and sit back and relax and gather her thoughts. She subsequently angrily stated she believed the father had read through her hospital file after the Doctor had left the room after she had given birth to the children. As such she believed the father was now making up stories about her and she felt that “the finger is always being pointed at me because of their violence and he just wants to take the children away from me”. Ms Kreuzer believed there was a bias against women where if reports of family violence were not reported to police, it did not mean that is had not existed.
Mr Kreuzer also raised concerns in respect of the mother’s violent or angry temperament. Paragraph 31 of the Family Report states:
Mr Kreuzer stated he was still proposing for the children to live with him and to spend time with the mother. He felt that after the mother had abandoned the children in October 2011 he had kept calling her to return to the home but she had refused. He stated he remained very concerned “I don’t know what is going to happen because the children’s mother loses her temper and I have concerns about their safety with her”
There is no evidence of current State Court intervention Orders between the parties.
Section 60CC(3)(l) - 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
The recommendations of Dr R suggest a number of measures inconsistent with the making of final Orders such as the appointment of a Independent Children’s Lawyer. Dr R also proposes “the children continue to live with the father, pending a further review of this matter if the Court deems this as being appropriate”. As a consequence, the Court raised with Counsel the possibility of making interim Orders? There are, of course, many arguments against doing so not the least being that an objective of this Court is to provide certainty for parties and their children as well as the mechanism for establishing routine and order in children’s households and relationships. Nevertheless, there are occasions where interim Orders might be appropriate such as when a period of supervision of children’s time with a parent is deemed necessary. No support for such a process of interim orders was forthcoming from Counsel for either party although this does not, of course, preclude the Court from proceeding this way if seen to be in the Children’s best interests.
The question of supervision of children is, however, a difficult one to determine in respect of any final orders. Supervision by its very nature is and should be a temporary protective measure. Consequently, the imposition of a condition of supervision, as sought by the father in this matter, would be likely to lead to further proceedings.
Discussion and conclusions
Each of the parents seeks primary care of these young twins who are just two years of age. The central argument is as to the capacity of each parent to be the primary carer. The father’s argument as to the mother’s capacity extends to him requiring supervision of the children’s time in her care based on the safety factors arising from her psychiatric history.
The best evidence before me is that these young children have attachments to each of the parents. This was the observation and conclusion of the family reporter.
The mother’s argument rests on two areas of the criticism of the father. Firstly, she says that his work hours are such that he is required to substantially delegate the children’s care to his own parents. To the contrary, she argues that she works in a [omitted] with flexible hours and would present as a more available carer for the children. The evidence, however, goes no further than the mother having flexibility in her employment. Obviously, if she was to be the primary carer, and whilst at work, she would be requiring the assistance of others in her family, professional carers, or the father to care for the children. The mother’s case is lacking in detail in this regard. She adduced no evidence from other potential carers or those that may assist her. Her own evidence is unparticularised as to her own work arrangements. The lack of corroborative witnesses is noteworthy in the mother’s case given that she lives with her parents and brothers. They could have been witnesses to the mother’s capacity given her mental health history and indeed, the intervention of one of her brothers in a previous admission of the mother to a psychiatric institution. Further, the brothers have been the most recent supervisors of the mother’s time with the children. However, for reasons best known to the mother, such evidence was not forthcoming although I do not go so far as to make any negative inferences pursuant to Jones & Dunkel[5] given that no submissions were forthcoming from counsel.
[5] (1959) 101 CLR 298
I am not persuaded on the mother’s argument that the father’s work commitments compromise his ability to care for the children. He works from 4 am until about midday on Saturdays and Sundays as a [omitted]. He works as a [omitted] on two half days per week. He lives with his extended family. His father has filed an affidavit setting out his willingness and availability to assist with the care of the children and the history of him doing so. The evidence of both Mr Kreuzer and his father was impressive and withstood cross-examination, such as it was. The father’s overall work commitments are not lengthy or onerous and there is no evidence to suggest that he does not devote his remaining time primarily to the care of the children. The children have always lived in the familiar environment with the paternal grandparents.
The mother’s second argument against the father relates to violence within his household and a collateral system of control and duress, stemming from the paternal grandfather. The mother particularises extreme examples, such as being forced by the Kreuzer family to change her name and her religion. These allegations are denied both by the father and his own father. Challenge to these two men in cross-examination was minimal, if any, and certainly unsuccessful. I am not persuaded that there was a degree of control or power imbalance within the Kreuzer household to the degree and in the particulars suggested by the mother and certainly not so as to impact on the best interests of the children. I note, however, that generations of the one family continue to reside together but that this is also the case with the mother’s household and extended family and there is no evidence before me to suggest that the children’s interests are compromised in either household by this arrangement. Indeed, it is noteworthy that the presence of the mother’s brothers, as interim supervisors, have allowed and assisted in a continuing relationship between the mother and the children during the course of these proceedings and whilst the various arguments and allegations have been litigated or investigated.
Consequently, I am satisfied that the children are settled and properly cared for in the father’s household. I am satisfied that he prioritises the children’s care and that he receives appropriate support and assistance from his extended family. The children are still young and this home is the only one they have known as a primary residence.
The mother’s mental health history grounds the argument by the father for him to have sole parental responsibility of the children and for them to live with him. On the evidence before me, I am satisfied that the mother has a previous diagnosis of schizophrenia. Dr S in the witness box confirmed that the mother’s symptoms were consistent with such a diagnosis. Nevertheless, it is the mother’s current and future capacity to care for the children and make decisions for them which is most relevant.
The father questions the mother’s insight into her illness or, alternatively, her public acknowledgment of it in the sense that she may have avoided the broader public knowledge of her diagnosis in order to assist her in her case in these proceedings. There is some evidence which supports the father’s concerns. In my view, the mother did not comply with an interim court order to file an affidavit from her medical practitioner setting out the ongoing assistance she receives. Similarly, the evidence suggests that she has not been immediately forthcoming with her new medical practitioners in respect of the previous diagnosis of schizophrenia. The mother ceased her course of medication unilaterally in about 2009 although there is now some suggestion that the course of prescribed medication was only for a limited period in any event. Generally, the evidence supports that the mother is equivocal about the diagnosis and her statements to the family reporter suggest that she may yet doubt that diagnosis of schizophrenia. Consequently, taking the evidence as a whole, and on the balance of probabilities, I find some merit in the father’s argument that the mother may not have been completely forthcoming in respect of her diagnosis and so as not harm her case before this court.
There is also the issue of whether or not the mother has suffered a relapse from her initial episode in 2007. The father gives evidence that the mother showed symptoms of paranoia and delusional behaviour on occasion during the course of their relationship. He was not cross-examined or cross-examined successfully in respect of this evidence. There is a tendency by the father to equate this evidence and the mother’s own claims of controlling behaviour within the father’s household with her previous paranoiac episode although, on reflection, the evidence does not allow me to make such findings.
Despite my concerns in respect of the mother’s evidence, her psychiatrist, Dr S, was an impressive witness. With reservations as to the claims espoused by the father, Dr S’s view is that the mother’s condition has stabilised. He gave clear and cogent evidence as to the nature of schizophrenia generally and the mother’s situation in particular. When challenged in the witness box, Dr S recommended regular monitoring of the mother by a suitably qualified psychiatrist and noted that she currently saw his colleague, Dr O. Dr S thought monthly monitoring would be sufficient and noted that the onset of symptoms of any relapse would be gradual rather than spontaneous and hence apparent to the medical practitioner. Dr S recommended further prescribed medication only upon relapse and of course this would be consistent and reliant upon regular monitoring of the mother’s condition.
Whilst there are concerns as to the mother’s public and private acknowledgement of her previous condition and in respect of the father’s evidence from 2009, I am satisfied on the balance of probabilities that the mother’s condition is currently stable. This does not, of course, mean that she is not prone to a relapse. Nevertheless, I am of the view that an order requiring the mother to attend regularly on her psychiatrist and comply with that psychiatrist’s directions would address any safety concerns. It would be appropriate for the father to be authorised to speak to the psychiatrist or, alternatively, the psychiatrist to notify the father if the mother failed to attend the consultations and/or showed symptoms of a relapse.
Considering my findings above, I am not satisfied that the presumption of equal shared parental responsibility is rebutted as being contrary to the children’s best interests. Whilst the levels of communication and trust between these parties is minimal, such is not unusual during litigation. It is encumbent upon the parents to objectively and responsibly act in concert in respect of their children’s decision making obligations and best interests. I am of the view that each of these parents has much to offer their children in this regard. I am not persuaded that the mother’s allegations of violence within the father’s household has been made out and, as such, the presumption applies. I am satisfied therefore that there should be an order for equal shared parental responsibility.
Neither parent seeks orders for the children to spend equal time between them. It would, in any event, in my view, be inappropriate and contrary to the children’s best interests. There is residual antagonism and lack of trust between the parents. The children are still very young. The lack of parental cooperation argues for the children having a major and stable home base. Their home since birth has been with the father and, for a period, including their mother together with the paternal extended family. As mentioned above, I am satisfied as to the father’s ability to care for the children and the quality of the support network he enjoys. I am not persuaded by the mother’s arguments to contrary as to the father’s capacity.
I am satisfied that he has promoted the children’s relationship with the mother within the context of his reasonable subjective concerns as to her mental health.
It follows that I am satisfied that the children’s best interests are served by remaining in the primary care of the father.
The father proposes that the children’s time with the mother be supervised until such time as her psychiatrist decrees otherwise. The father’s position is based on the mother’s historical diagnosis of schizophrenia, her alleged lack of insight and acknowledgement of that condition, and the potential for relapse. These issues have been discussed above in detail. Whilst I must, pursuant to section 60CC(2)(b) of The Act, make orders which address safety concerns in respect of the children, I must do so in a realistic sense and whilst addressing the evidence as a whole and attribute weight to that evidence.
I am satisfied as to the mother’s diagnosis of schizophrenia. I share the father’s concerns as to her previous lack of acknowledgment or insight into her condition and that she may have deliberately attempted to hide her diagnosis so as to shore up her case in these proceedings.
The question of imposing a condition of supervision is, however, a vexed one. My inquiry as to whether or not it would be appropriate to make interim orders was met with contrary arguments by counsel for both parties in their final submissions. I must look at the evidence as to whether the mother presents as a risk to the children’s health and safety, both physically and emotionally. I must assess the nature and gravity of any such risk. Supervision is one option available to a Court with which to address any risk factors. The Court has options other than supervision in attending to risk, as supervision is by its very nature onerous, inconvenient, temporary and carries connotations for both parents and children. It creates obligations on third parties and resources and, as such, is not seen as a long-term option. It is the task of the Court to craft orders to meet the particular vagaries in circumstances of the particular factual platform.
In the matter now before me, and after consideration, I am not persuaded that supervision is the only available or appropriate safety mechanism available to the Court. I note Dr S’s comments in respect of the mother’s condition having stabilised. I find merit in his suggestion that the mother be required to attend regularly on her psychiatrist and to comply with directions. I note Dr S’s evidence that the symptoms of the mother’s condition would not usually occur spontaneously but gradually over time. I note that the mother’s own brother has previously been proactive in attending to her initial episode and causing her involuntary admission. I also take note of Dr S’s recommendations or conclusions at numerical paragraphs 4-8 as follows:
It is important that she has ongoing supervision by her General Practitioner to ensure she maintains her remission and that if any signs of relapse occur that she is promptly referred either to a private psychiatrist or back to [omitted] Mental Health Services.
There is a role for antipsychotic medication to reduce the risk of relapse. If, indeed, she has had two episodes of that illness, long-term medication should be considered.
It is important to note that the current situation with her removal from being the primary caregiver of the children, her level of contact with them, and the circumstances of this, is a major stressor; this may increase her risk of relapse in the future.
I do not see any current impediment to her care of the children in this context.
Orders can be crafted that would not have the children spending lengthy block periods of time with the mother and thereby assisting the father’s vigilance and this in itself would serve as an inbuilt protective mechanism.
It is important in my view for children of such a young age as [X] and [Y] to spend frequent periods of time with their mother thereby allowing Dr R’s observations of an attachment to continue and to flourish. Such time, however, should allow the continuance of a primary home base in the father’s household. There is no evidence that the mother’s work commitments create any particular difficulties in formulating a regime of time for the children with her. The father works mornings on Saturdays, Sundays in the early morning and Mondays and afternoons on Tuesday. The children are some years from school age.
Taking all of these matters into account, I propose to order that the children spend time with the mother weekly, between Monday at 9 am and Tuesday at 6 pm. This does, of course, include overnight time and, given the mother’s history and the recent lack of overnight time for the children with her, I propose to order that the children spend such overnight time in the home of the maternal grandparents or otherwise as agreed between the parties in writing for the next six months.
The children are just two years of age and school is some way in the future. Inevitably, however, these orders will need to be addressed and reconsidered when such other factors intervene. I intend to order that the parties first attend a mediation in an attempt to resolve any such issues. I will also order that the mother attend on her psychiatrist at least once a month and authorise the father to have access to the psychiatrist and be notified should the psychiatrist note a relapse of the mother’s condition or if she does not attend appointments. I do not propose to Order that the children’s time with the mother be supervised.
I have not received any direct submissions in respect of the injunctive order sought by the husband and the evidence adduced does not persuade me that such orders are necessary or appropriate.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of McGuire FM
Date: 15 March 2013
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