Leslie and Dempsey

FAMILY COURT OF AUSTRALIA

LESLIE & DEMPSEY

[2013] FamCA 576

FAMILY LAW – CHILDREN – Best interests of a child – Where the proposals substantially differ – Parenting capacity – Where the mother suffers from mental health disorders – Where the father demonstrates similar emotional features to the mother – Where the parties have a poor relationship and poor communication – Where the parents are capable of meeting the physical needs of the children and are better parents separated than together – Whether equal shared parental responsibility is appropriate – Where the parties do not live in geographical proximity to each other – Where the father seeks that the eldest child live with him and the youngest in two years – Where the expert does not support equal or substantial and significant time with the father for both children – Where it is agreed that the youngest child should live mainly with the mother for the medium term and where the expert does not recommend that the child move to live with the father after two years – Where the children should live together and mainly with the mother – Where the youngest child’s time with the father later increase to overnight and block periods to reflect the child’s age and development.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61DA, 65DAA, 65DAC
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011

McCall & Clark (2009) FLC 93-405
Mazorski & Albright (2007) 37 Fam LR 518
G & C [2006] FamCA 994
Champness & Hanson (2009) FLC 93-407

APPLICANT:

Ms Leslie

RESPONDENT:

Mr Dempsey

INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyers

FILE NUMBER:

PAC

4954

2010

DATE DELIVERED:

11 January 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Loughnan J

HEARING DATE:

20, 21, 22 & 23 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr. P Schroder

SOLICITOR FOR THE APPLICANT:

Ms Neilson of Legal Aid NSW Parramatta

SOLICITOR FOR THE RESPONDENT:

James Papas Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gardiner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyers

Orders

(1)The parties shall have equal shared parental responsibility for the children J born … June 2007 and B born … November 2010.
(2)At all times when they are not living with the father pursuant to these orders, J and B shall live with the mother.
(3)J shall live with the father as follows:
(a)from the commencement of these orders until Tuesday 22 January 2013:
(i) each week from 3.30 pm Saturday until 10.00 am the following Tuesday; and,

(b)       from the commencement of the 2013 NSW School Year:
(i)        during school terms, each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Tuesday commencing the first weekend occurring in Term 1, 2013. In the event that the father does not reside within 30 minutes of the mother’s residence, that time will conclude at 5.30 pm on the intervening Sunday;
(ii)      for one half of each school holiday period (including the Christmas School Holiday period), and in the absence of an agreement between the parties for the first half of each school holiday period in 2013 and each alternate year thereafter and for the second half of each school holiday period in 2014 and each alternate year thereafter;
(iii)     in the event the Easter period does not fall within a school holiday period, and in the absence of an agreement between the parties, from 5.00 pm on the Thursday immediately preceding Good Friday until 5.00 pm Easter Saturday in an even year and from 5pm Easter Saturday until 5.00 pm Easter Monday in an odd year;
(iv)     the weekend upon which Father’s Day falls from the conclusion of school on Friday until to 5.30 pm on Father’s Day;
(v)       by telephone at all reasonable times; and,
(vi)     other times as agreed between the parties.

(4)B shall spend time / live with the father as follows:
(a)from the date of these orders until Tuesday 22 January 2013:
(i)        from 10.00 am to 1.30 pm each Tuesday
(ii)      from 3.30 pm to 5.30 pm each Sunday; and
(b)from the commencement of the 2013 school year until the commencement of the 2014 school year:
(i)        each alternate weekend (including during school holiday periods) from 3.00 pm Saturday until 5.30 pm Sunday being the same weekend during which J is with the father; and
(ii)      to facilitate time in order 4b only the mother shall deliver B to the father's residence at the commencement of time;
(iii)     from 3.30 pm to 5.30 pm Christmas Eve 2013.
(c)at the commencement of the 2014 school year, for the same times as specified in Order 3b in its entirety, ensuring that both J and B are with their father at the same time.

(5)Unless otherwise agreed between the parties school holiday contact:
(a)shall commence at 10.00 am;
(b)shall conclude at 5.30 pm;
(c)will be calculated from the first day after the last day of school until and including the day immediately before school resumes;
(d)pupil free days are not included as school holidays; and,
(e)after a period of school holiday referred to in Order 3b(ii), time pursuant with Order 3b(i) shall recommence on the first Friday of the relevant school term when the father has enjoyed the first half of the preceding school holiday period and on the second Friday of the relevant school term when the father has enjoyed the second half of the preceding school holiday period.

(6)Time in accordance with Orders 3 and 4 the father's time shall be suspended on the whole weekend upon which Mother’s Day falls.
(7)Unless otherwise agreed between the parties and as otherwise specified in Order 4b and when the father collects the children from school pursuant to these orders, for the purposes of facilitating the father's time with the children the parties shall meet at Suburb C McDonalds and at commencement and conclusion of the father's time.
(8)Unless the parties otherwise agree, they shall sign all documents and do all things to cause J to attend at D School from the commencement of the 2013 school year.
(9)The mother shall:
(a)attend all appointments with Dr E and Dr A;
(b)remain engaged with those health professionals for so long as they so recommend;
(c)take Seroquel or any medication prescribed for her mental health in accordance with the prescription for long as they are so prescribed; and,
(d)abstain from using cannabis or any other illicit substance.

(10)Neither party shall speak badly about the other or the members of their families to or in the presence of J and B and shall use their best efforts to prevent any other person from so doing.
(11)Each party shall give all consents and execute all documents necessary so that the other can obtain any information from any health professional, school or pre-school with whom J and B are engaged.
(12)Each party is restrained from using physical punishment upon either of the children.
(13)
The mother shall do all things necessary to encourage the maternal grandmother to attend upon or otherwise communicate directly with

Dr E and any other treating medical practitioners in relation to her mental health, for information about the management of the mother’s mental health, as soon as practicable and thereafter, as and when recommended by those treating practitioners.
(14)The parties are at liberty to restore the proceedings to the list in relation to the wording of these orders, within six weeks of the date of the orders or such further time as is agreed between the parties, on giving at least seven (7) days notice to each other and to the Court.
(15)Pursuant to sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym
Leslie & Dempsey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: PAC 4954 of 2010

Ms Leslie

Applicant

And

Mr Dempsey

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings in relation to two boys, J who is five years of age and B who is two years of age. They are the children of Ms Leslie, (“the mother”) and Mr Dempsey, (“the father”). The parties commenced a relationship in 2000 and they separated on 3 October 2010.
The key issues relate to the parenting capacities of the parents, the nature of their relationships with the children and their capacity to promote the other parent with the children.

Applications

The Independent Children’s Lawyer sought orders as follows:
(1)All previous parenting orders in this matter are discharged.
(2)That the parties have equal shared parental responsibility for the children [J Dempsey] born … June 2007 ("[J]") and [B Dempsey] born … November 2010 ("[B]").
(3)[J] & [B] shall live with the mother except as otherwise provided for in these orders.
(4)Until 22/1/2013:
(a)       [J] shall spend time with the father as follows:
(i)From 2pm each Friday to 10am each Tuesday
(ii)Other times as agreed between the parties.
(b)       [B] shall spend time with the father as follows:
(i)From 10am to 2pm each Tuesday;
(ii)From 10am to 2pm each Friday;
(iii)Other times as agreed between the parties;
(5)From 21/1/2013 [J] shall spend time with the father:
(a)       From the conclusion of school each alternate Friday until the commencement of school on Tuesday provided the father resides within a 30 minute drive of the mother's home;
(b)       For half of each school holiday periods as agreed and in default of agreement, the first half in years ending with an even number (e.g. 2014, 2016, 2018 etc) and the second half in years ending with an odd number (e.g. 2013, 2015, 2017);
(c)       In the event that he is not otherwise with his father on his birthday, for 3 hours on [J's] birthday;
(d)       At other times as agreed between the parties.
(6)[B] shall spend time with the father from 22/1/2013 until 1/7/2013 each alternate weekend from 10am Saturday until 5pm Sunday, being the weekend [J] is spending time with the father.
(7)From 1/7/2013 [B] shall spend time with the father each alternate weekend from the conclusion of school on Friday until 5pm Sunday being the same weekend that [J] is with the father.
(8)From 21/1/2014 [B] shall spend time with the father:
(a)       From the conclusion of school each alternate Friday until the commencement of school on Tuesday, provided the father resides within a 30 minute drive of the mother's home;
(b)       For half of each school holiday periods as agreed and in default of agreement, the first half in years ending with an even number (e.g. 2014, 2016, 2018 etc) and the second half in years ending with an odd number (e.g. 2013, 2015, 2017);
(c)       In the event that he is not otherwise with his father on his birthday, for 3 hours on [B's] birthday;
(d)       At other times as agreed between the parties.
(9)For the purposes of orders 5(a) and 8(a) if the father does not live within a 30 minute drive of the mother's residence then the weekend time the children spend with the father shall conclude at the commencement of school on Mondays.
(10)Notwithstanding anything in these orders to the contrary, [J] & [B] shall spend at least 10am to 4pm with the father each father's day and shall spend at least 10am to 4pm with the mother each mother's day.
(11)For the purpose of either or both children transferring from one parent to the other, the father shall collect the children from the mother's home at the commencement of time and the mother shall collect the children from the father's home at the conclusion of time until such time as the transfer can be affected through the children's school.
(12)The mother shall:
(a)attend all appointments with [Dr E] and [Dr A];
(b)       remain engaged with those health professionals for so long as they so recommend;
(c)       take Seroquel or any alternate medication prescribed for her mental health in accordance with the prescription for long as they are so prescribed;
(d)       abstain from using cannabis or any other illicit substance;
(13)Neither party shall speak badly about the other or their family to or in the presence of [J] & [B] and shall use their best efforts to prevent any other person from so doing.
(14)Each party shall give all consents and execute all documents necessary so that the other can obtain any information from any health professional, school or pre-school with whom [J] and [B] are engaged.
(15)Each party is restrained from using physical punishment upon either of the children.
(16)The parties shall forthwith do all acts necessary to enroll [J] in the public school closest to the mother's residence and shall maintain his enrolment at the school closest to the mother's residence unless the parties mutually agree to the contrary.
The Applicant mother sought orders in accordance with her case outline as follows:
(1)That the parties have equal shared parental responsibility for the children [J Dempsey] born … June 2007 (hereinafter referred to as [J]) and [B Dempsey] born … November 2010 (hereinafter referred to as [B]).
(2)That [J] and [B] live with the Mother.
(3)That [J] spend time with the Father as follows:
(a)       From the commencement of these orders until Tuesday
22 January 2013:
(i)        Each week from 3.30pm Saturday until 10am the following Tuesday (with the exception of the Christmas period as set out in Order 3b); and
(ii)      From 3.30pm Saturday 22 December 2012 until 5.30pm Monday 24 December 2012.
(b)       From the commencement of the 2013 NSW School Year:
(i)        During school terms, each alternate weekend from the conclusion of school on Friday until 5.30pm Sunday commencing the first weekend occurring in Term 1, 2013.
(ii)      For one half of each school holiday period (including the Christmas School Holiday period), and in the absence of an agreement between the parties for the first half of each school holiday period in 2013 and each alternate year thereafter and for the second half of each school holiday period in each 2014 and each alternate year thereafter.
(iii)     In the event the Easter period does not fall within a school holiday period, and in the absence of an agreement between the parties, from 5pm on the Thursday immediately preceding Good Friday until 5pm Easter Saturday in an even year and from 5pm Easter Saturday until 5pm Easter Monday in an odd year.
(iv)     The weekend upon which Father’s Day falls from the conclusion of school on Friday until to 5.30pm on the Sunday which is Father’s Day.
(v)       By telephone at all reasonable times.
(vi)     Other times as agreed between the parties.
(4)That [B] shall spend time with the Father as follows:
(a)       From the commencement of these orders until Tuesday 22 January 2013:
(i)        From 10am to 1.30pm each Tuesday (excepting Christmas Day            2012);
(ii)      From 3.30pm to 5.30pm each Sunday; and
(iii)     From 3.30pm to 5.30pm Christmas Eve 2012.
(b)       From the commencement of the 2013 school year until the commencement of the 2014 school year:
(i)        Each alternate weekend (including during school holiday periods) from 3.00pm Saturday until 5.30pm Sunday being the same weekend in which [J] is with the Father; and
(ii)      To facilitate time in order 4b only the Mother shall deliver [B] to the Father's residence at the commencement of time;
(c)       At the commencement of the 2014 school year, for the same times as specified in Order 3b in its entirety, ensuring that both [J] and [B] spend the same time with the Father.
(5)Unless otherwise agreed between the parties school holiday contact:
(a)       Shall commence at 10.00AM;
(b)       Shall conclude at 5.30PM;
(c)       Will be calculated from the first day after the last day of school until and including the day immediately before school resumes;
(d)       Pupil free days are not included as school holidays.
(e)       After a period of school holiday referred to in Order 3bii, time pursuant with Order 3bi shall recommence on the 1st Friday of the relevant school term when the Father has enjoyed the first half of the preceding school holiday period and on the 2nd Friday of the relevant school term when the Father has enjoyed the second half of the preceding school holiday period.
(6)That time in accordance with Orders 3 and 4 the Father's time shall be suspended on the whole weekend upon which Mother’s Day falls.
(7)Unless otherwise agreed between the parties and as otherwise specified in Order 4b and when the Father collects the children from school pursuant to these orders, for the purposes of facilitating the Father's time with the children the parties shall meet at [Suburb C] McDonalds and at commencement and conclusion of the Father's time.
The Respondent father sought orders in terms of a Minute of Orders provided at the commencement of the trial. He seeks:
(1)That the parties have equal shared parental responsibility for the children [J] born … June 2007 and [B] born … November 2010.
(2)That [J] live with the Respondent.
(3)That [J] spend time with the Applicant as follows:
(a)       From the commencement of the 2013 NSW School Year:
(i)        During school terms, each alternate weekend from the conclusion of school on Friday until the commencement of school on Tuesday.
(ii)      During each school holiday period for one half of those holidays being the first half in 2013 and each alternate year and the second half of those holidays in 2014 and each alternate year thereafter.
(4)That [B] live with the Applicant up until … November 2014 and thereafter with the Respondent.
(5)That [B] spend time with the Respondent up until … November 2014:
(a)       Up until … November 2013, during school terms from the commencement of school Tuesday each week until the conclusion of school on Thursday and during each school holiday period for the second half one of those holidays.
(b)       Up until … November 2014, during school terms from the commencement of school Tuesday each week until the conclusion of school on Friday and during each school holiday period for the first half one half of those holidays.
(6)That [B] spend time with the Applicant as follows:
(a)       From the commencement of the 2015 NSW School Year:
(i)        During school terms, each alternate weekend from the conclusion of school on Friday until the commencement of school on Tuesday.
(ii)      During each school holiday period for one half of those holidays being the first half in 2015 and each alternate year and the second half of those holidays in 2016 and each alternate year thereafter.
(7)That the parties be able to telephone the children at any reasonable time either child is not living with them.
(8)That for the purpose of [J] and [B] spending time with the Applicant pursuant to orders 3 and 6 that respondent deliver the children to the applicant at her residence at the commencement of those times and that the applicant return the children to the respondent at his residence at the conclusion of those times.
(9)That for the purpose of [B] spending time with the Respondent pursuant to order 5 that Applicant deliver the child to the Respondent at his residence at the commencement of those times and that the Respondent return the child to the Applicant at her residence at the conclusion of those times.

Written Evidence

The applicant mother relied on the following documents:
a.Amended Initiating Application filed 7 August 2012; and
b.Affidavit of the mother affirmed 9 August 2012 and filed 14 August 2012.
The respondent father relied on the following documents:
a.Amended Response filed 27 January 2011;
b.Affidavit of the father sworn 30 October 2012 and e-filed 31 October 2012;
c.Affidavit of the father sworn 31 October 2010 and filed 1 November 2010;
d.Affidavit of Mr F signed 24 October 2010 and filed 1 November 2010;
e.Affidavit of Mr G sworn 31 October 2010 and filed 1 November 2010; and
f.Affidavit of Ms H sworn 31 October 2010 and filed 1 November 2010.

Expert Evidence

The following expert evidence was relied on:
a.Primary Report of Dr K dated 23 April 2012;
b.Supplementary Report of Dr K dated 5 July 2012.

The Hearing

The matter was listed for hearing over four days commencing 20 November 2012.

Short History

The father, Mr Dempsey, was born in 1968 and as at the time of the hearing, he was 44 years of age. The mother, Ms Leslie, was born in 1980 and as at the time of the hearing, she was 32 years of age. The parties commenced their relationship in about January 2000. The mother says that she and the father started living together in about June 2000 and they separated on a final basis on 3 October 2010.

Children

There are two children of the relationship, J born in June 2007 who is currently five and a half years of age and B born in November 2010, currently two years of age.

Background Facts

In 1992 the father married Ms I. They had three children, sadly losing one child to a lung haemorrhage at 19 days. They separated in about 1998. Their surviving children, L (about 18 years of age) and M (about 17 years of age) live with their mother at Suburb N, north of Melbourne.
In about January 2000, the parties commenced their relationship. At that time the mother was 19 years of age and living with her maternal grandmother in a caravan park at Suburb O. The father was 31 years of age.
The parties started living together in June 2000.
In June 2007, the parties’ first child, J, was born.
Between about 2008 and 2010, the mother attended upon a psychologist,

Dr A (P Medical Centre). In about June 2008, the mother suffered a miscarriage. On 8 November 2008, the mother was hospitalised. In about December 2008, the mother was hospitalised for five weeks at R Psychiatric Unit, the mental health facility at Q Hospital. It is the mother’s evidence that this admission was voluntary.
From 19 December 2009 to 29 January 2010, the mother was again hospitalised at R Psychiatric Unit. Although the mother attended at the hospital voluntarily, she did not consent to the conditions under which she was admitted. The mother left the hospital for periods of time including overnight during this time. In about December 2009, the mother was diagnosed with bipolar disorder II.
In about 2010, the mother started seeing her psychiatrist, Dr E (S Mental Health Service).
From 2010 to June 2012, a social worker conducted monthly visits to the mother’s home.
It is the mother’s evidence that the parties separated on a final basis on

3 October 2010. It is the father’s evidence that an arrangement had been foreshadowed for the parties and the children to spend the long weekend at the Southern Highlands home of the paternal grandmother. The mother spent the night of 2 October 2010 with her mother and returned to the parties’ Suburb T home on 3 October 2010. Notwithstanding the planned visit to his mother’s home, the father arranged to stay at home with J on 3 October 2010 to watch a football grand final. The maternal grandmother had been visiting Sydney and came by the house in the afternoon. The mother came back to the house and shortly thereafter left to return to her mother’s home. Later that day, the father left the former matrimonial home with the child J (and the paternal grandmother in her own car) and travelled to his mother’s home in Town U, without further notice to the mother.
It was the evidence of the mother that she last smoked cannabis in early October 2010. The mother contends that the availability of marijuana at the home contributed to her taking the drug.
On 18 October 2010, the mother filed an Initiating Application seeking parenting orders in relation to J and a Notice of Child Abuse or Family Violence (alleging family violence).
On 19 October 2010, Registrar Bartlett made directions for the matter to be included in the Magellan program and for the Department of Family and Community Services to be notified.
On 1 November 2010 the father filed a Response. Justice Johnston ordered the parties to attend upon a family consultant, appointed an Independent Child Lawyer and adjourned the matter to 6 December 2010. His Honour ordered that until 6.00 pm on 6 December 2010 the child live with the father and spend overnight time with the mother (for period of two days/two overnights) with the maternal great grandmother, Ms V, to be present at all times. The mother was ordered to notify the father upon the birth of their second child.
In November 2010, the parties’ second child, B, was born. The father was not listed on the birth certificate but the child’s surname was recorded as “[Dempsey]”.
On 2 December 2010, the father filed a Notice of Child Abuse or Family Violence (alleging both child abuse and family violence).
On 6 December 2010 Stevenson J heard a further interim application. Her Honour made directions for the filing of an amended application and response and referred the matter to the docket Registrar for further case management and directions.
Registrar Tran made orders by consent for J to spend additional time with the mother on two occasions in the presence of the mother’s grandmother, and varied the previous Interim Orders (that were continued by Stevenson J) as to the time of commencement and conclusion. The parties consented to each undertaking a random urinalysis chain of custody test (within 48 hours of ICL request) and for the ICL appointment to be extended to B. The Registrar noted that orders 4 and 5 made on 1 November 2010 were continued pending further order.
On 27 January 2011, the father filed an Amended Response seeking the following orders:
(1)The children both reside with the father.
(2)The children both spend time with the mother:
(a) Each week on Tuesday from 10am to Thursday 5 pm provided that the mother ensure that the grandmother [Ms V] is present at all times the children are living with her.
(b) At such other times as agreed between the parties.
(3)That the child [B] be named with the surname “[Dempsey]”.
On 1 February 2011, by consent, Registrar Bartlett discharged some previous Interim Orders and made further Interim Orders whereby, among other provisions, J would live with the mother each week from 10.00am Tuesday to 2.00pm Friday. That arrangement was to be unsupervised provided the mother attended on her doctors and took Seroquel or any other medication prescribed for her and refrained from the use of cannabis or other illicit substances. J was to otherwise live with the father. The orders also provided for the father to spend time with B from 10.00 am to 12.00 pm each Tuesday and from 12.00 pm to 2.00 pm each Friday. B was otherwise to live with the mother.
On 4 May 2011, Registrar Bartlett ordered the matter be placed in the queue of cases awaiting trial and that it have priority in that queue.
On 8 June 2011, the matter was before me to commence the trial stage of the proceedings. I appointed Dr K, a Consultant Adult, Child and Family Psychiatrist, as a Chapter 15 Single Expert to prepare a report in the proceedings (with attention to the mother’s bipolar disorder and the impact of that condition on her parenting capacity). The matter was adjourned to a date to be fixed upon the release of that report.
On 16 August 2011, I made orders by consent directing the single expert to report on further specific issues, including the risk of emotional and physical abuse to the children, family violence and the mental health of both parties.
On 23 April 2012, Dr K completed his report.
The monthly mental health team visits to the mother’s household ceased in June 2012.
On 4 July 2012, Registrar Bartlett ordered that the matter be listed for final hearing over 4 days, and made trial directions.
On 5 July 2012, Dr K prepared an updated report in these proceedings.
On 7 August 2012, the mother filed an Amended Initiating Application.
On 14 November 2012, Registrar Bartlett made orders releasing the updated expert report prepared by Dr K.
As at the date of the hearing the mother continued to take Seroquel 100mg each morning and night. She continued to see her psychiatrist Dr E every 8 to12 weeks. The mother had recently re-engaged her psychologist Dr A and saw her fortnightly. She lived in a three bedroom home in Suburb Y. She was in receipt of a parenting payment. She was not in paid employment.
The father lived with his mother at Town U and does not have paid employment.
J is to commence school in 2013. The mother proposes he attend D School. The father proposes that he attend a school near the residence he intends to find in the Suburb W area.

Credibility

The mother gave her evidence with little affect. She was not successfully challenged on any aspect of her evidence. The mother was asked why her mother was not at court to support her and responded that her mother was minding the children. She was asked why she had not called her mother as a witness and responded to the effect that her maternal grandmother was intimately involved in her life for the relevant (earlier) period and she thought she would be a more relevant witness. She mentioned that she had been warned off relying on too many affidavits. On balance no inference can be drawn from the mother’s failure to call the maternal grandmother as a witness.
As Dr K observed of him during his report interviews, the father smiled extensively while giving his evidence. The father was a poor witness, partly because his case makes little sense and partly because he had difficulty in answering directly the questions asked of him, including those from his own solicitor. The father was left to explain the inexplicable and naturally was unable to do so. The father’s witness Mr F contradicted the father’s evidence about the extent of his use of marijuana and whether he purchased marijuana.
The father’s mother was a poor witness. Not that I detected any intention by her to mislead the court, quite the contrary, it is just that she was not able to give reliable evidence about key issues. Importantly, she was unable to give evidence about the father’s proposals. Her memory is not good and the father had not taken her into his confidence about his recently formed plans. In the latter regard, she had been on holidays, including two weeks overseas leading up to a few days before the trial.
Mr F contradicted himself about the father consuming marijuana after J was born and contradicted the father about the father purchasing marijuana for consumption by the parties. To that extent he demonstrated that he was independent of the father.

The Expert Evidence

The Single Expert

Dr K is a Consultant Adult, Child and Family Psychiatrist practising in Sydney in the State of New South Wales. Dr K graduated in medicine in 1971. In 1983 he was awarded a Certificate in Child Psychiatry from the Royal Australian and New Zealand College of Psychiatrists and was made a fellow of the college. Among many positions and roles, from 1983 to date Dr K has conducted a private practice in Adult Psychiatry; Child and Family Psychiatry; and Medico Legal Psychiatry. He has been a Visiting Medical Officer, Psychiatrist, at X Hospital, Sydney and a Consultant to the Child Protection Unit at that hospital. From 2003 to 2009 Dr K was a foundation member of the Australian Society of Medico-Legal Consultants and from 2000 to date he has been a member of the Faculty of Forensic Psychiatry at the Royal Australian & New Zealand College of Psychiatrists. From 1983 to date he has undertaken the roles of lecturer and supervisor in graduate mental health education. Dr K’s work with the Child Protection Unit of X Hospital has been complemented by his clinical work using psychoanalytic psychotherapy and his work with children who have been abused and adults who have been abused as children or as adults.

The evidence of Dr K

Dr K reported that the Leslie-Dempsey family history is complex and still evolving. He said that although the history is dominated by the mother’s more recent psychiatric needs, those psychiatric needs have distracted from and overshadowed the two adults, the mother and father, who both have been and are struggling in life and relationship. In Dr K’s opinion, having been able to look back over the mother’s clinical development and with a knowledge of her significantly disturbed developmental history, it is more likely that her psychiatric episodes were clinical manifestations of an underlying borderline functioning. Dr K explained that she is an individual who emotionally lives on the border of functioning and not functioning. On occasions, under stress the mother has slipped into an overwhelming anxious affective and psychotic functioning. He detected a strong theme of the terror of abandonment and loss in the mother. Dr K considered that when presenting with overt clinical psychiatric disturbance she requires ordinary psychiatric intervention and she also requires psychotherapeutic help when not clinically acutely disturbed to help her maintain a healthier orientation within herself and within her relationships.
In relation to the father, Dr K noted that the history described an exemplinary development but that he demonstrated similar emotional features to those of the mother. He did not display her fragility and he is more successfully emotionally defended. He is without the mother’s overt clinical disturbance effect except for the episode of anxiety he experienced which was treated with an anti-depressant. Dr K thought that the father can be seen as having an emotional underdevelopment with narcissistic personality traits. Like the mother, he too has little self reflection and sees his struggles in life and relationships as outside of himself. In Dr K’s view those features mean that the mother and father are a potent mix when faced with stress which requires them to acknowledge each other’s own frailties to allow them to work together.
Dr K reported that the parental emotional vulnerability can be seen in each child’s behaviour of separateness and independence at such an early age. Dr K said that given the complexity for the family it is reasonable, provided that there is a holding structure accepted by the parents, that each of them have the opportunity to contribute to their children’s development. He went on to say however that given B’s age, his development currently requires a more consistent environment. Albeit not a fulsome endorsement, there was no history available at the time of Dr K’s first assessment, suggesting that the mother’s environment particularly perhaps while in an extended household has been insufficient to facilitate reasonable growth and development for B. In Dr K’s view both children’s physical needs appear able to be met by each of the parents. Their emotional needs are compromised but appear to be better met with the parents separated and with each parent supported within their extended family. Dr K said that with neither parent having the ability to be self reflective and with each of them being self absorbed or narcissistic, they are left fundamentally suspicious and disturbed by each other. Within their separation Dr K felt that the parents have been able to obtain sufficient distance for their unhealthy way of relating to be more settled. However their ability to be able to maintain this apparent more healthy relationship through separation will be continually tested particularly as the children grow and develop and their needs take on more importance for parental expectations such as the current apparent disagreement about schooling.
As to the question of the children being separated Dr K noted that they behaved as separate individuals which he thought was a reflection of their early separation and individuality, but also a reflection of their ages. Nevertheless he thought it would be wise for ongoing development, that the children be seen as a unit and decisions made with an opportunity to facilitate their relationship and interaction. Dr K considered that the father should have more contact with B than he had been having and that he should be able to see J and B together. Nevertheless Dr K considered that B has a greater need for one consistent environment, given his age.
In Dr K’s second report which was dated 5 July 2012 but was only released to the parties in November 2012, he was asked to address the problem of J needing to commence school in 2013 where the parents lived a significant distance apart. Among other things Dr K said that the needs of the children could only be met if the parents were able to reside in proximity to the children’s primary place of residence. Dr K said that it would be best if the children were together, that is a protective mechanism and provides greater security for them. He said that it could avoid long term difficulties and that there is usually a better outcome if siblings are together.
Dr K was asked about the father’s proposal that B live with the mother for two years and then live mainly with the father. Dr K thought that was not an optimal arrangement and that it was important for B to maintain his primary relationship but thereafter he should have other relationships with other family members. In relation to the possibility of a shared care arrangement, Dr K said that in his view, the greater the extent of shared care, the more respect is required between the parents. Dr K thought that such an arrangement can create anxiety and conflict in children as they are put in a position to choose one parent over another. Dr K agreed with the proposition that if parents are unable to work together it is best if one parent has the major input to the growth and development of the children.
In cross-examination on behalf of the father Dr K was asked about the impact on the mother’s psychiatric health of what were described as co-morbid factors such as an eating disorder, her being addicted to cannabis and her anxiety disorder. Dr K said the important thing to know is whether those factors are present today. Dr K said that it was not unusual for somebody with the mother’s vulnerabilities to struggle with eating and weight. He said that persons such as the mother might not feel deserving of nurture. Dr K said that there is still the potential for the mother to decompensate in a crisis, he said that her condition is more complex than is reflected in a bare diagnosis of bipolar disorder II. Dr K said that the mother’s situation highlights not just the need for psychiatric assessment but an acceptance of the need for continued psychological support particularly where there are young children involved who are good at testing and unhinging a parent.

Submissions

The case outline documents provided on behalf of the ICL, the mother and the father contained submissions which I will not set out in any detail here. Oral submissions were made at the conclusion of the trial.
Suffice it to say that the ICL notes that Dr K identified that each of the parties have ‘vulnerabilities’ and the distinguishing factor was that the mother had demonstrated that she is aware of the potential limits on her parenting capacity.
It was noted that Dr K had not recommended that the children be separated.
For the mother it is argued that the orders proposed by the ICL are virtually identical to those sought by the mother. The mother agrees with orders 12, 13, 14 or 15 of the orders proposed by the ICL.

It is submitted for the mother that the proposals promote a meaningful relationship between the children and the parents save that the father has raised all manner of criticism of the mother and refused every opportunity to support the mother’s parenting capacity. It is submitted that the mother has the requisite parenting capacity. Since 2010 she has dealt with her mental health issues and Ms Z, her social worker, the psychiatric registrar’s reports and the home visit by Mr MM from the mental health team all support the mother. It is noted that there has been nothing from any compellable notifier about concern for the boys or either of them in the mother’s care. I accept those submissions. It is noted that although the mother has enquired about changing her medication, she has shown that she understands that she must be compliant or she will lose her children. It was noted that the father does not have a detailed proposal.
It was confirmed on behalf of the father that he does not contend that the mother represents an unacceptable risk to the children. It was noted that the mother did not criticise the father’s parenting save for his attitude to her. It is submitted that in terms of time with the other parent, the father’s proposals better support the mother’s relationship with the children that those sought by the mother in relation to him. It was submitted that there remains a concern in relation to the mother because of her poor mental health and because of her behaviour in striking the children. It is noted that the mother functions on the borderline at all times. It is submitted that in light of Dr K’s evidence, the mother’s situation is not such as she describes and that the father is entitled to be concerned about those things. The learned solicitor for the father attempted to explain to me how the father’s criticism of the mother’s proposal sits with his application that B live mainly with the mother for two years. He was not successful. He would not accept the logical conclusion arising from the father’s case, that in weighing up the options including the safety of B and the impact on B of a separation from his primary care giver, it followed that the best course was that B remain mainly with the mother for the next two years. I understood from the father’s solicitor that the father’s case was not one of absolute preference, one household over the other. Rather the case is that the father’s proposals are preferable for the children. It is submitted that the father’s proposals would mean that one potential stressor would be removed from the mother in that she would not have the primary care of J, or presumably after two years, of B. As I noted at the time, that concept was not put to Dr K.

The Legislation

Parenting proceedings are determined on the basis of s 60CA of the Family Law Act1975 (Cth) “(the Act”). It provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The task of identifying appropriate parenting orders starts with parental responsibility.
Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply and if it does apply, it can be rebutted. Depending on whether an order will be made for equal shared parental responsibility or not, s 65DAA requires that the court consider orders for equal time or substantial and significant time.
Findings are made by reference to what is in the child’s best interests. The Act specifies in s 60CC the matters that are relevant to the determination of what is in a child’s best interests.
Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
As with some other provisions of the Act, section 60CC has been amended. The s 60CC amendments apply on and from 7 June 2012 but only for new proceedings[1]. As the legislation related to these proceedings the section specified the following considerations:
[1] Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 - Act No. 189 of 2011. Section 45 of the amending Act provides: “The amendments made by items 1 to 8, 11, 13, 17 to 21, 30 to 34, 37, 38 and 40 to 43 of this Schedule apply in relation to proceedings instituted on or after the commencement.”

Primary considerations:

(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents

In McCall & Clark (2009) FLC 93-405 the Full Court accepted the interpretation of Brown J in Mazorski & Albright[2] to the effect that a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. The Full Court also accepted the interpretation of Bennett J in G & C[3] that the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[2] (2007) 37 Fam LR 518.
[3] [2006] FamCA 994.
In Champness & Hanson (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at 83,502:
103.The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original)
The Full Court also observed in that decision at 83,513: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’ ”.
Each of the parties proposed that there be substantial periods of time spent between each children and the other parent.
The background facts suggest that J had and has a meaningful relationship with each of his parents. Each of the parties proposes that J live for significant periods with the other party, overnight, for block periods and that the time be unsupervised. I take it that the parties contend that any of the proposals will facilitate a meaningful relationship between him and each parent in the future.
B was born after separation and he has had limited time with his father. Both parents propose that for the next couple of years at least, B will mainly live with his mother. Nevertheless they each propose significant time between B and his father. Again, I take it that the parties contend that, given his age, any of the mooted proposals will facilitate a meaningful relationship between him and each parent in the future.

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

‘Abuse’ and ‘family violence’ are defined terms. The definitions were changed as of 7 June 2012 but only for new proceedings. As the legislation related to these proceedings s 4 of the Act included the following definitions:
"abuse" , in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
The mother strikes the children for disciplinary purposes.
The father gave evidence about witnessing the mother strike J at some time around her first admission to hospital in November 2008. He said: “While being assessed she smacked [J] so hard he cried and I took him from the room and comforted him. The hospital staff advised me that they would have to record this incident with DOCS …”. The father deposed to the effect that on 26 September 2009 J told him: “mummy won’t stop smacking me. The mother said: “he has been really naughty” The father said to her: “that doesn’t mean you can smack him constantly”. The father deposed that since the commencement of these proceedings he has observed the mother strike J on about 8 or 9 different occasions and B on at least 3 occasions.
During cross-examination by the counsel for the ICL, the mother was asked about striking the children: “When is it appropriate to smack a child?”. The mother said there was “a grey area here” and asked counsel to put the question in the context of a particular past incident. Counsel then referred the mother to the father’s allegations that she inappropriately physically disciplines the children and asked: “I am asking you to explain why it is you feel the need to smack the children”. The mother responded:
I appreciate that they’re learning and both of them know …one of my things is that you only get one free shot because you’re learning. They’re allowed to make a mistake without being punished in any way, shape or form. I explain to them why they mustn’t do what they have done. If it does go on and other methods aren’t working then smacking is the last resort.
The mother was not asked and did not volunteer what the “other methods” might be or about the extent to which they would be explored by her before she would strike a child. The suggestion of a “rule” that a two year old is limited to “one free shot” – that he is allowed to make only one mistake before being punished is ridiculous and quite concerning. However, the explanation may be found in the reference to exhausting “other methods”.
During her cross-examination the mother did not cavil with the proposition that “you don’t do it on an every day basis, it’s not a drop of a hat reaction, you use it as a last resort”.
Taken together and given that the mother accurately described her approach, there need be nothing alarming in that evidence.
Dr K was asked about J volunteering to him that he was struck by his mother and noted that the disclosure was without distress or affect consistent with an abusive incident.
I retain a concern about the mother’s use of physical force on the children. The mother is vulnerable to anxiety. When a person is anxious or upset or otherwise distracted it can be difficult for them to strike a child in a way that is a permissible and useful chastisement but not abusive. The ICL proposes and the mother does not oppose a restraint on her striking the children.

Additional Considerations

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

The children are very young and it is not suggested that their views are relevant.

(3)(b) the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);

Dr K observed the boys, the mother and the maternal grandmother to be familiar and comfortable with each other. He observed that they all appeared familiar and comfortable with each other in their relationships. J was settled and playful.
In this regard Dr K’s report is ambiguous but I understand it to mean that J (rather than B) separated from the mother without any difficulties.
On the occasion that the boys were seen by Dr K with the father, they were both unsettled as if tired or hungry but Dr K noted that he was not told that they were tired or hungry. J was at times clinging to the father but Dr K observed the father to manage his attention while also looking after and coping with B. Although compliant, J was not entirely comfortable when left alone with the expert while his father was out of the room for a period.
When the family was seen together, J occupied his father while B, unsettled and crying, was looked after by the mother.
On the second occasion B was seen by Dr K, he was seen with the father and mother. He was unsettled and grumpy and on both occasions he would not separate from the mother to be seen on his own. On one occasion when seen with his father B was unsettled and restless and cried. When seen with the father and J, B was more settled and began to explore the room before again becoming preoccupied with eating.
Dr K reports that shared care of J would not be unreasonable and that it would be reasonable, given his involvement with J that B “have more, in a gradual and evolving manner, involvement with the father which would include contact between them outside the maternal household”. It is implicit in the latter recommendation that the mother has a close and important relationship with B, reflecting the fact that he has always lived with her. That proposition appears to underlie all of the proposals.

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

It is the mother’s case that the boys are safe with the father. She is concerned that he might become distracted but she has no specific concerns. She seeks orders consistent with that case – for unsupervised time. The mother did not hesitate when asked to concede that the father loves the boys.
On the other hand the father does not consider the mother to be a capable parent. As I understood the submission made by his solicitor, it is argued that the father simply did not have the opportunity to express his support for the mother’s parenting. If that is the argument, it is not available on the facts of this case. It was put to the father during cross-examination that, given the orders he seeks, it must be the case that he has confidence in the mother’s parenting. He responded to the effect that the mother would need to have a lot of support (for him to have that confidence). The issue was pressed further and it was put to him that, as he sought that B remain with the mother for two years, he must have confidence in her capacity. The father rejected that proposition. He was asked why he had sought such an order and his remarkable response was to the effect that he did not believe that the Court would order that B come with him as he had such a limited time with the child.
Dr K agreed in cross-examination that, given his personality, it would be difficult for the father to promote the mother to the boys. That opinion seemed to be born out in the father’s evidence.
It was noted by the expert and it is obvious from the evidence of the parties that they have each been highly critical of the parenting behaviour of the other. They have taken action in the past to keep one or both of the children away from the other parent. However, paradoxically, they each ask the Court to make future provision for a significant and unsupervised involvement of the other parent in the lives of the children.

(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

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

Dr K gave evidence of the protective effect for children of siblings living mainly together. The proposals of the mother and the ICL would have that impact, more than those of the father. It is the father’s proposal that J live mainly with him but that B remain with the mother for two years.
It is common ground that B should mainly live with the mother for the next two years. Therefore it is agreed that it would not be in his best interests to be removed from the primary care of his mother, except for short periods. The father seeks that order despite the fact that he does not consider that the mother is a capable parent. Therefore, presumably he considers that there are very compelling countervailing arguments in favour of B staying with the mother for the medium term. Hopefully, they are not solely based on that is what he thinks the Court will do.

(3)(e) 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;

It is difficult to address this criterion because the father’s proposals are recent and undefined. As I have set out below, it seems to me there is a good explanation as to why the location and daily supervision aspects of the father’s proposals are vague but that does not change the fact that there is no detail to assess.
As at the time of the hearing the parties lived about 83 kilometres apart, with the mother and her mother at Sydney Suburb BB and the father with his mother, at Town U in the Southern Highlands. The father plans to move to the Suburb W district. Suburb W and Suburb BB are about 16 kilometres apart. His move will greatly improve the practicability of the children’s living arrangements and reduce the impact on them of their parents’ separation.

(3)(f) the capacity of:

(i) each of the child's parents; and

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

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

The mother was diagnosed with bipolar disorder II in 2008. The single expert, Dr K, however, considers that the mother may have borderline personality disorder and that her previous manic presentations arose from an underlying vulnerability to anxiety. In his opinion the medication prescribed for the mother was appropriate to address her presenting symptoms but that unlike someone diagnosed with bipolar disorder II alone, the mother requires closer, ongoing support.
The mother currently relies on her mother, Ms CC as her main support person. The mother sees her mother at least two times a week. Other support is provided by the mother’s father who she sees two to three times a month; she sees her best friend less frequently than that. The mother also referred to her elder brother as a source of support. Previously support was mainly provided by her maternal grandmother, Ms V but since late 2011, Ms V has lived in country NSW. It is of concern that the mother’s mother is not on affidavit to indicate what support she is able to provide and she was not available to answer questions in cross-examination. It is of concern that the mother’s mother has not been involved in any medical appointments in relation to the mother’s mental health. The mother did give evidence to the effect that she reports to or confides in her mother after medical appointments.
The father said that in September 2010 he was worried about the mother’s health and contacted the acute care section of S Mental Health Service. They arranged to send a midwife called Mr MM to do a home visit. The mother accused the father of betraying her. The records of S Mental Health Service[4] cover contact with the mother until June 2012 when the mother’s case worker resigned and it was agreed that the visits would cease. The reports consistently reveal that the mother has been coping and dealing with various issues in her life. The earlier reports contain references from the mother to attempts by the father to seek to improve the parties’ relationship or perhaps reconcile.
[4] Exhibit 2.

In the father’s affidavits and his oral evidence he was unremittingly critical of the mother. Dr K recorded in this main report that father gave him “an exhaustive and repetitive history” of the mother’s “disturbance and inadequacies as a mother”. The evidence reveals that of recent times, the father focussed on recording the mother’s failings rather than seeking to support her and thereby, the children.
In one way it reflects poorly on the father that he did not have settled proposals for the future. That is because he decided to change his plans immediately before the trial. However, as to that part of his changed proposal that would have him living nearer the mother in Western Sydney, there is what seems to me to be a very proper explanation for the father’s change of heart and therefore no inference adverse to him should be made for that reason alone. In his updated report Dr K said among other things: “The needs of the children can only be met if the parents are able to reside in proximity to the children’s primary place of residence.” Although the report was dated July 2012, for reasons that do not appear in the evidence, it was only released to the parties under cover of a letter dated 14 November 2012. Thus the father only had a week to consider that recommendation. This explanation was not offered to me by the father or his solicitor but it is consistent with what I understand of the facts and may explain them.
Of course, Dr K’s observations were not revolutionary and it might be thought that the father could himself have identified that the 80 odd kilometres he put between the households did not, of itself, promote and have impacted on the best interests of the children.
However, the lateness of the release of the updated report does not explain the father’s decision to significantly change his proposals for the living arrangements for the children. His proposals changed from both boys living with him and spending two days with their mother on a supervised basis, to a shared care arrangement for J with B to live mainly with the mother, with no supervision requirements in either case. Nor does the fact of the late-released report explain why the father did not seek an adjournment in order to crystallise and be able to present his new proposals.
When asked in cross-examination, the mother had difficulty in assessing the father’s current parenting capacity. She has not seen him parent for two years. However, the mother said she does not believe that he would put the children in harms way, just that he might be preoccupied with what he is doing.
As is referred to above, Dr K observed that each of the parents sought to criticise others and had little insight into any failings they themselves might have.
Importantly, Dr K expressed the view that both children’s physical needs appear able to be met by each of the parents. He thought that the boys’ emotional needs were compromised but appeared to be better met with the parents separated and with each parent supported within their extended family.
Each of the parents and the ICL propose that B live mainly with the mother into the medium term. Albeit put in the negative, the expert endorsed the mother’s majority care of B. He found that there was no history available suggesting that the mother’s environment, particularly perhaps while in an extended household, has been insufficient to facilitate reasonable growth and development for B.
Dr K noted that with neither parent having the ability to be self reflective and with each of them being self absorbed or narcissistic, they are left fundamentally suspicious and disturbed by each other. However, Dr K said that within their separation, the parents have been able to obtain sufficient distance for their unhealthy way of relating to be more settled. He warned that their ability to be able to maintain this apparently more healthy relationship through separation will be continually tested, particularly as the children grow and develop and their needs take on more importance for parental expectations such as the current apparent disagreement about schooling.
The parties smoked marijuana. The mother said she last smoked it in early October 2010 when she left the former home in Suburb T. The effect of the mother’s evidence is that at least on occasions, the father obtained the marijuana that she and they smoked. The father said he only smoked it once or twice and ceased after J was born. The father contended that he did not buy the marijuana consumed by the parties or by the mother. The father’s witness, Mr F disagrees and contended that he saw the parties smoke marijuana and said that the father purchased marijuana. On that evidence the truth is likely to fall closer to the mother’s version of events.
Each of the parents smokes cigarettes. The mother was asked about that in cross-examination. She smokes 10 to 15 cigarettes a day but not inside her home.

(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

The mother experienced the breakdown of her own parents’ relationship. She was three years of age when her father left. She lived with her mother in several places in Western Sydney for the next four years. When she was seven years of age she moved in with her father. They lived in various locations around the state including Town AA, Town DD and Town EE. When she was 13½ years of age she left her father and moved in with her maternal grandmother at a caravan park at Sydney Suburb O. That is where she remained until the moved out with the father when she was 19. The mother was exposed to domestic violence between her mother and her partner, Mr FF. She witnessed a physical fight between her parents at changeover, when she was eight or nine years of age. She was aware of, but did not witness, violence between her mother and another partner called Mr GG. The mother’s mother and the maternal grandmother have been estranged from each other but they recently had contact for the first time in two years. The mother has step-siblings from her father’s subsequent relationships.
The mother said in cross-examination that she was consistently depressed during her childhood. In 1996 her 19 year old fiancé was killed in a motor vehicle accident.
The mother was hospitalised on three occasions at mental health units (HH Hospital once and R Psychiatric Unit, twice, in 2008 and 2009. The mother was diagnosed to have bipolar disorder II in 2008 and 2009. The symptoms observed by the mother were:
·    Expressing anger
·    Lack of sleep
·    Eating difficulties
·    Relationship problems
·    Nightmares
·    Manic moods
·    Depressed moods
The mother conceded that in 2008 she consumed a lot of cannabis – and on a daily basis. The mother was taken off an anti-psychotic medication and put on an anti-depressant.
In December 2009 the mother experienced a psychotic event and was taken to hospital in handcuffs and was the subject of an involuntary admission.
She was first prescribed Seroquel by her GP, Dr JJ in 2006 and 2007 and was put on Zoloft in 2009.
She suffered chronic pain for about one week every two months over about 12 to 15 years, because of Endometriosis. That was a very debilitating condition; she needed to stop work at times and at other times would tie a hot pack to her waist to ameliorate the pain. Episodes of gastro-oesophageal reflux were addressed and she has not suffered with that since October 2010. The mother was diagnosed with “Eating Disorder Not Otherwise Recognised”. The mother has a recommended diet involving high dairy intake, avocados and carbohydrates.
Until June 2012 Ms Z from the S Mental Health Service made monthly visits to the mother’s home. Ms Z left her position and in consultation with the mother, no further arrangement replaced the supervision by Ms Z. The mental health case worker file is now closed. The mother continued and continues to attend on Dr E, a psychiatrist at Suburb T. The mother sees Dr A, a psychologist every three months and the mother describes the treatment as “we talk”.
As is set out above, Dr K noted that the father’s history described an exemplinary development but that he demonstrated similar emotional features to those of the mother. He did not display her fragility and he is more successfully emotionally defended and without overt clinical disturbance effect except for the episode of anxiety he experienced which was treated with an anti-depressant. Dr K thought that the father can be seen as having an emotional underdevelopment with narcissistic personality traits with which he too has little self reflection and sees his struggles in life and relationships as outside of himself. Dr K was taken to the fact that the father’s most recent proposals, particularly those in relation to B, are largely inconsistent with his case. Dr K responded to the effect that that could be a reflection of the father’s emotional needs, rather than being a logical attitude.
Dr K saw the boys in October 2011. He considered that J’s dress and manner were ordinary for his age. He related to a stranger in a way that was age consistent for a child who was used to spending time with strangers. On his brief observation Dr K detected no developmental disorder but divined from his way of interacting with the world, a suggestion of an emotional underdevelopment.
Dr K noted that the children behaved as separate individuals which he thought was a reflection of their early separation and individuality, but was also a reflection of their ages.
Dr K did not consider that the children require any psychological therapy at this stage. He recommended that the parents wait and see how the children cope with school.

(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) 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

(ii) the likely impact any proposed parenting order under this Part will have on that right;

This does not apply.

(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

I have referred to the relevant evidence about this issue under other headings.

(3)(j) any family violence involving the child or a member of the child's family;

I have referred to the mother’s approach to physical discipline elsewhere.

(3)(k) any family violence order that applies to the child or a member of the child's family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person;

There is no family violence order.

(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 parties have a very poor relationship. They are highly suspicious of each other, have a poor opinion of each other and therefore their communication is poor. Despite these problems the parties seek orders that will require them to cooperate – an order for equal shared parental responsibility; and regular time for the children with each parent.
I do not think it unfair to summarise one aspect of Dr K’s evidence as - for all of their problems, the parties can better parent when separated than they did together. Nevertheless, that is a scenario that suggests the likelihood or risk of further proceedings.

(3)(m) any other fact or circumstance that the court thinks is relevant.

In his Amended Response filed 27 January 2011 the father lived in the Southern Highlands and sought that the boys (then aged three and 14 months) live with him and spend time with the mother for two and a half days each week supervised by her grandmother). On the first morning of the trial, for the first time the father announced significantly changed proposals. He now seeks a shared care arrangement for J with the child spending three and a half days with the mother each fortnight during school term. He seeks that B remain living mainly with the mother, unsupervised, for two years. After two years he proposes that B too live mainly with him under the same regime as he proposes for J. The father announced that he would move to Western Sydney.
The father was unable to give evidence about the practical implications of his proposals, such as: where he would live; where the boy/s would go to school or day care; how he would manage financially; what the out-of-school care arrangements would be if he returned to work; what his working hours would be and so on.
The father is very critical of the mother’s parenting capacity and yet he seeks orders that both boys live with her for part of the time, including overnight, unsupervised. He seeks no restraint on those aspects of her behaviour that he says impair her parenting. Notwithstanding his criticisms of the mother, the father proposed that the younger and more vulnerable child, B, remain living mainly with her for another two years.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
If no order is made in respect of parental responsibility then the position as to the parenting of a child is as follows:
SECTION 61C
Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
An order for shared parental responsibility has the following effect:
SECTION 65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Presumably that must also apply to equal shared parental responsibility.

Discussion

Section 61DA provides:
Presumption of equal shared parental responsibility when making parenting orders
(1)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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
It does not matter about the presumption. The ICL and the parties all propose that the parents have equal shared parental responsibility.
It being the agreed position, I will order that the parties have equal shared parental responsibility.

Conclusion

The presumption that the parents having equal shared parental responsibility would be in the children’s best interests, does apply. It is agreed that the parties will have equal shared parental responsibility.

Living Arrangements

There will be an order for equal shared parental responsibility. Therefore I must consider the children living for equal time with the parents. In the event that I do not order equal time then I am obliged to consider substantial and significant time.
Neither of the parents, nor the ICL seeks that I order that the father have equal or substantial and significant time with B. The expert does not support equal or substantial and significant time for both children. The expert does not support the children being separated. In relation to the possibility of a shared care arrangement, Dr K said that in his view, the greater the extent of shared care, the more respect is required between the parents. Dr K thought that such an arrangement can create anxiety and conflict in children as they are put in a position to choose one parent over another. Dr K agreed with the proposition that if parents are unable to work together it is best if one parent has the major input to the growth and development of the children.
If the father moves closer to the mother then equal time or substantial and significant time may be practicable but those arrangements would not be in the best interests of the children. In any event, these are civil proceedings and caution is needed before imposing on the parties an arrangement that is not sought. In any event, such arrangements could not be imposed without having been canvassed during the trial.
The court must identify living arrangements that would be in the best interests of J and B.
I take from Dr K’s evidence that he detected the consequences of the parties’ emotional vulnerability in the behaviour of the children. Dr K said that provided that there is a holding structure accepted by the parents, that each of them has the opportunity to contribute to their children’s development. Each is able to meet the children’s physical needs. Dr K considered that given his age, B requires a consistent environment. Although expressed in the negative, presumably to reflect a degree of caution in the endorsement,

Dr K suggested that mother’s environment, particularly perhaps while in an extended household, has been sufficient to facilitate reasonable growth and development for B.

Dr K reported that the children’s emotional needs appear to be better met with the parents separated and with each parent supported within their extended family.
As to family support, the mother’s mother has not given evidence. Unlike the maternal great grandmother she is a relatively recent source of close support. The mother’s own development may have been compromised in her mother’s household over the years. Of particular concern, there is no evidence of the maternal grandmother’s knowledge of warning signs in relation to the mother’s mental health. On the other hand, the father plans to move out of his mother’s home and there is no evidence about the future extent of his family support.
As I mentioned above, Dr K said that with neither parent having the ability to be self reflective and with each of them being self absorbed or narcissistic, they are left fundamentally suspicious and disturbed by each other. Within their separation Dr K felt that the parents have been able to obtain sufficient distance for their unhealthy way of relating to be more settled. However their ability to be able to maintain this apparent more healthy relationship through separation will be continually tested particularly as the children grow and develop and their needs take on more importance for parental expectations such as the current apparent disagreement about schooling.
Although not without its risks, the way forward is relatively clear. The parents are each capable of meeting the physical needs of the children. The parents do better separated than they did together. The parents need family support. The children should be mainly together. It is an agreed fact that B should live mainly with the mother for the medium term. Dr K sees no justification in moving B to the father after two years. On that basis, where the proposals substantially differ, the father’s proposals cannot be preferred.
The proposals of the mother and the ICL do not differ in substance save that the mother does not provide for the father to have any significant involvement in J’s school week. I will make orders substantially as sought on behalf of the mother but provide for J (and later B) to be returned by the father to school each alternate Tuesday. That order is only feasible if the father changes residence as he proposes. I have no reason to assume that he will not relocate. In order to avoid the necessary travel impacting on J and later B on a school morning, if the father does not relocate then his time will conclude at 5.30pm on the Sunday of those weekends.
Dr K signalled the importance for the children of the parents having family support. It should be observed that it is to their great credit that members of the parents’ families have stepped in to provide love and support, not only to the parties but to J and B. That cannot have always been easy and reflects well on them.
The parenting load on the father will be less than that on the mother but he plans to move away from his main support. The father’s mother gave evidence before me and I detected nothing in her presentation or evidence that suggested that despite living apart from them, she would not continue to provide love and support to the father and the boys.
The fact that the mother now primarily relies on her mother and that her mother has not had direct involvement with the mother’s treating psychiatrist and other practitioners is of concern. It leaves an obvious gap in the safety net for the mother and therefore, for the children.
Although no formal permission is necessary, I would encourage the parents to show a copy of these reasons to their mothers. The grandmothers should know that the boys are vulnerable and will need the love and support of their extended family. They must be allowed to love and to develop relationships with each other, with each of their parents and with the members of their extended family. That will contribute to a stable foundation for their growth and development.
I cannot make an effective order requiring the mother’s mother to obtain information directly from the mother’s treating mental health professionals but I would strongly encourage it. I can and I will order that the mother do all she can to cause that to occur. Such communication will avoid any misunderstanding and will ensure that the mother’s mother knows what to look for in supporting the mother, and thereby, the children.
Dr K was concerned whether the mother appreciated that she has fragile emotional functioning and that there are therapies available, like analytic therapy which might assist her. Noting that the mother would need to want to be engaged, Dr K suggested that ideally she would see such a therapist regularly, over months and years. That would assist her to better understand her emotional functioning and make better decisions about how to live her life and look for warning signs. During his oral evidence, I canvassed with Dr K what might be done to ensure that those opinions were at least brought to the attention of the mother’s treating practitioners. I will direct that the ICL facilitate communication between Dr K and Dr E. I will order that a copy of these reasons be provided to Dr E and the mother’s treating psychologist. That will facilitate a consideration of Dr K’s opinion about the mother having an underlying condition and the most effective management of that condition. Dr K kindly indicated a willingness to engage in that communication.
The restraints on the parties proposed by the ICL are agreed by the mother and are not opposed by the father. I will make those orders.
There was no agreement about schooling for J. The father does not have a specific proposal. It may be that it will not be controversial but in order to avoid a dispute so close to the commencement of his formal schooling, I will provide that J attend D School, as the mother has proposed. The parties are permitted to agree otherwise.

Conclusion

The parties are loving and capable parents. Based largely on the unchallenged opinion of the Court expert, the best arrangement for the children is one where their parents share parental responsibility and where the children live together and mainly with their mother. B’s time with his father will reflect his age and state of development but in time he will enjoy the overnight and block periods which J will have with his father.
The children are lucky to have a loving extended family and the members of that family are likely to be an important part in promoting a healthy and safe development for the children.
I have made orders in the general form sought by the mother and ICL but have used “live with” where appropriate to best reflect the importance of the arrangement in each household. I will make provision for the matter to come back before me if necessary in relation to the form (rather than the import) of the orders.

I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 11 January 2013.

Associate:

Date: 11 January 2013

[2013] FamCA 576

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness