Ligar and Gibney and Stedman and Gibney
[2014] FCCA 2934
•22 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LIGAR & GIBNEY and STEDMAN & GIBNEY | [2014] FCCA 2934 |
| Catchwords: FAMILY LAW – Parenting – children aged 7 & 4 – different fathers – each father seeking an order that his biological child live with him – mother seeking an order that both children live with her – where the father of the older child is a capable parent and is the obvious choice for primary residence of his child – where it is not feasible for him to take the younger child – inevitable therefore that the siblings must be split – where there are concerns about both the mother and the biological father of the younger child – where the risk of future litigation if the younger child remains with the mother is high but this choice best ensures that the children will continue to see each other regularly for the time being – this choice the least worst outcome for the younger child. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA |
| Adamson v Adamson [2014] FamCAFC 232 Carlson & Fluvium [2012] FamCA 32 |
| Applicant: | MR LIGAR |
| Respondent: | MS GIBNEY |
| File Number: | SYC 4731 of 2012 |
| Applicant: | MR STEDMAN |
| Respondent: | MS GIBNEY |
| File Number: | NCC 2238 of 2012 |
| Judgment of: | Judge Terry |
| Hearing dates: | 16, 17, 18 & 19 December 2013 and 28 May 2014 |
| Date of Last Submission: | 28 May 2014 |
| Delivered at: | Newcastle |
| Delivered on: | 22 December 2014 |
REPRESENTATION
| Counsel for the Mr Ligar: | Ms Petrie |
| Solicitors for the Applicant Mr Ligar: | McCulloch & Buggy Lawyers |
| The Applicant Mr Stedman: | In Person |
| Counsel for the Respondent: | Mr Weightman |
| Solicitors for the Respondent: | Rice More & Gibson |
| Counsel for the Independent Children's Lawyer: | Mr Duane |
| Solicitors for the Independent Children's Lawyer: | Peter Hamilton & Associates |
ORDERS
SYC 4731 of 2012
[X] born in 2007 shall live with the father MR LIGAR.
The father shall have sole parental responsibility for decisions concerning:
(a)the child’s education including choice of school and involvement in any remedial programs recommended by the school;
(b)the child’s health including choice of treatment and choice of paediatrician, psychologist or counsellor.
The father shall keep the mother MS GIBNEY informed of:
(i)The name of the school at which the child is enrolled;
(ii)The name of any medical specialist, psychologist psychiatrist or counsellor engaged to treat the child;
(iii)Any other decision he makes in the exercise of sole parental responsibility for the child.
The mother and father shall otherwise have equal shared parental responsibility for the child.
The child shall spend time with the mother:
(a)Each alternate weekend during school terms from 5.00pm on Friday or 5.00pm on Thursday if Friday is a public holiday or a pupil free day until 5.00pm on Sunday or 5.00pm on Monday if Sunday is a public holiday or a pupil free day;
(b)For half of the school holidays at the end of Terms 1, 2 and 3 being the first half of the holidays in odd numbered years and the second half of the holidays in even numbered years with the time to commence at 5.00pm on the last day of the school term or 5.00pm on the first Friday of the holidays as the case may be and end at 5.00pm on the middle Friday of the school holidays or 5.00pm on the last Sunday of the school holidays as the case may be each school holiday period;
(c)From 12 noon on Christmas Day until 4.00pm on Boxing Day in each even numbered year and from 4.00pm on Christmas Eve until 12 noon on Christmas Day in each odd numbered year;
(d)For two separate periods of seven days in the 2014/15 school holidays and unless otherwise agreed between the parties being from 5.00pm on 2 January 2015 to 5.00pm on 9 January 2015 and from 5.00pm on 18 January 2015 to 5.00pm on 25 January 2015;
(e)For half of the Christmas school holidays commencing in 2015/16 being the first half of the holidays which commence in odd numbered years and the second half of the holidays which commence in even numbered years commencing on the last day of the school term or 5.00pm on the day which is the mid-point of the school holidays and ending at 5.00pm on the day which is the mid-point of the school holidays or 5.00pm on the last Sunday of the school holidays as the case may be;
(f)At such additional or alternate times as may be agreed between the parties.
The mother may have telephone communication with the child at times to be agreed between the parties and failing agreement each Tuesday and Thursday that the child is not with the mother with the call to be initiated by the mother between 5.30pm and 6.30pm and the father to make the child available to receive the call.
The father may have telephone communication with the child at times the child is with the mother at times to be agreed between the parties and failing agreement each Tuesday and Thursday with the call to be initiated by the father between 5.30pm and 6.30pm and the mother to make the child available to receive the call.
The mother shall do all things required to enable the child [Y] born in 2010 to spend time with the father and the child [X] from 5.00pm on Friday until 5.00pm on Sunday on the sixth or seventh weekend of each school term (being the weekend the child [X] is not spending with the mother).
Changeover between the parents for the purposes of Orders (5) & (7) shall unless otherwise agreed between the parties be at McDonalds Family Restaurant [address omitted].
The parties shall each promptly advise the other should the child while in their care be involved in an accident or medical emergency requiring attendance at hospital or be diagnosed as suffering from a serious illness.
Each parent shall be entitled to obtain from the child’s school copies of school reports, newsletters and other information normally provided to parents and shall be entitled to attend events at the school normally attended by parents.
Each parent shall keep the other advised of their residential address and mobile telephone number and advise the other party in writing (by text message or otherwise) within 48 hours of any change to those details.
The father is permitted to provide a copy of the Family Reports prepared in this matter to any professional person engaged to treat the child.
Pursuant to s.68B of the Family Law Act 1975 the mother is restrained and an injunction is granted restraining her from physically disciplining the child.
ORDERS
NCC 2238 OF 2012
[Y] born in 2010 shall live with the mother MS GIBNEY.
The mother and the child’s father MR STEDMAN shall have equal shared parental responsibility for the child.
The child shall spend time with MR STEDMAN:
(a)For one weekend each school term as agreed between the parties and not being the weekend [Y] is to spend with the child [X] at the home of Mr Ligar pursuant to orders made in proceedings SYC 4731 of 2012 from 10.00am on Saturday until 4.00pm on Sunday such time to occur in Sydney;
(b)For half of the school holidays at the end of Terms 1, 2 and 3 being the second half of the holidays in odd numbered years and the first half of the holidays in even numbered years with the time to commence at 12.00 noon on the first or second Saturday of the school holidays as the case may be and end at 12 noon on the second or third Sundays of the school holidays as the case may be;
(c)For two separate weeks in the 2014/2015 Christmas school holidays and unless otherwise agreed between the parties from 12 noon on 27 December 2014 to 12 noon on 2 January 2015 and from 12 noon on 10 January 2014 to 12 noon on 17 January 2014;
(d)For half of the Christmas school holidays commencing in 2015/16 being the second half of the holidays which commence in odd numbered years and the first half of the holidays which commence in even numbered years commencing at 12 noon on the first Saturday of the school holidays or 12 noon on the day which is the mid-point of the holidays and end at 12 noon on the day which is the mid-point of the holidays or 12 noon on the last Sunday of the holidays as the case may be;
(e)At such additional or alternate times as may be agreed between the parties.
Changeover between the parties for the purposes of order (3) shall unless otherwise agreed between the parties take place by the mother delivering the child to and collecting the child from the father at McDonald’s [omitted].
The father may have telephone communication with the child at times to be agreed between the parties and failing agreement each Monday and Wednesday with the call to be initiated by the father between 5.30pm and 6.30pm and the mother to make the child available to receive the call.
The mother may have telephone communication with the child at times the child is with the father at times to be agreed between the parties and failing agreement each Monday and Wednesday with the call to be initiated by the mother between 5.30pm and 6.30pm and the father to make the child available to receive the call.
The parties shall each promptly advise the other should the child while in their care be involved in an accident or medical emergency requiring attendance at hospital or be diagnosed as suffering from a serious illness.
Each parent shall be entitled to obtain from the child’s school copies of school reports, newsletters and other information normally provided to parents and shall be entitled to attend events at the school normally attended by parents.
Each parent shall keep the other advised of their residential address and mobile telephone number and advise the other party in writing (by text message or otherwise) within 48 hours of any change to those details.
Pursuant to s.68B of the Family Law Act 1975 the mother is restrained and an injunction is granted restraining her from physically disciplining the child.
The appointment of the Independent Children’s Lawyer is discharged upon the Independent Children’s Lawyer forwarding a copy of these reasons for judgment to the Department of Family & Community Services to be added to their records in respect of the mother.
IT IS NOTED that publication of this judgment under the pseudonym Ligar & Gibney and Stedman & Gibney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
SYC 4731 of 2012
|
Applicant
And
| MS GIBNEY |
Respondent
NCC 2238 of 2012
| MR STEDMAN |
Applicant
And
| MS GIBNEY |
Respondent
REASONS FOR JUDGMENT
Introduction
[X], 7 and [Y], 4 are brothers. Their mother is Ms Gibney, who lives in Western Sydney. [X]’s father is Mr Ligar who also lives in Western Sydney and [Y]’s father is Mr Stedman lives in [T].
When proceedings commenced in 2012 both children were living with the mother. [Y] continues do so but [X] has lived with Mr Ligar since interim orders were made on 3 June 2013. He currently spends time with the mother each alternate weekend and during school holidays.
Interim orders are in place providing for Mr Stedman to spend time with [Y] each alternate weekend in Sydney but he has not always been able to afford to travel to Sydney.
Mr Ligar and Mr Stedman both seek final orders that their biological child lives with them while the mother seeks final orders that both children live with her.
As Counsel for the Independent Children’s Lawyer observed during submissions this is a complex matter which the court must do its best to resolve using the blunt tools available to it.
Each proposal has its advantages and disadvantages.
Mr Ligar is by far the most stable and capable of the three adults and [X] has thrived in his care since the change of residence. Mr Ligar will only take [X] however so if [X] remains with him then the siblings, who lived together for the first 2 ½ years of [Y]’s life and who have a strong sibling bond, will be permanently separated.
Mr Stedman has the primary care of another child, [Z], aged 6 and seems to be providing him with adequate parenting. An advantage of [Y] living with Mr Stedman is that he will live with at least one of his close in age siblings albeit a sibling he knows less well than [X]. However Mr Stedman lives five hours from Sydney and he and the mother are both in poor financial circumstances. If [Y] lives with Mr Stedman he will not see his mother or [X] very often at all.
Mr Stedman has had some mental health problems in the past and he gave some fantastical and bizarre evidence during cross-examination which caused me to feel uneasy about him. His relationship with the mother between 2009 and 2012 was dysfunctional and there was frequent verbal and physical aggression between the adults to which the children were exposed. It is impossible to be sure what the future holds for Mr Stedman. Moreover [Y] has lived his entire life with his mother and it is open to question whether he would easily cope with a change of residence which was accompanied by only infrequently being able to see his mother.
The mother has a troubling history of transience and mental health problems and is resistant to taking medication. [X] was poorly parented by the mother between 2007 and 2012. She was very aggressive during her relationship with Mr Stedman and there is a risk that her current relationship may degenerate into just such another relationship. Her partner Mr D has had mental health problems in the past, has used illicit drugs, has criminal convictions and has had complaints made against him by two previous female partners.
There was no evidence of any recent issues for Mr D however and the mother impressed DOCs workers who were involved with her 2013. [Y] has a strong bond with her and he is visible in the community as a result of attending day care, which is some protection for him if concerns about the mother’s parenting capacity re-surface. His day care centre has no concerns about the mother’s care of him. As long as the mother continues to live in Western Sydney a placement with the mother means that [Y] is able to see [X] regularly even if [X] remains living with Mr Ligar.
However given the mother’s history and Mr D’s background the risk of parenting arrangements for the children coming unstuck is highest if an order is made that they live with the mother.
The orders sought by the parties with more particularity were as follows.
Mr Ligar sought orders that he have sole parental responsibility for [X] and that [X] live with him and spend time with the mother each alternate weekend from Friday to Sunday and for half of the school holidays. He proposed that the time during the Christmas school holidays be broken into alternate one week blocks.
He proposed that [Y] spend time with [X] at his home from 5pm Friday to 5pm Sunday on seventh weekend of each school term and for half of the school holidays.
Mr Stedman sought an order for equal shared parental responsibility and an order that [Y] live with him and spend time with the mother in [T]. His written proposal was that the mother’s time be supervised but he did not appear to be pressing for supervision in his final submissions. He proposed that [X] spend some time with [Y] in [T] based at the home of one of his maternal relatives.
The mother sought orders that she and the children’s biological parents have equal shared parental responsibility for their respective children and that both children live with her.
She proposed that Mr Ligar spend time with [X] each alternate weekend from Friday to Sunday and for half of the school holidays. She said that there was no reason why [X] could not cope with three week blocks during the school holidays.
She proposed that [Y] spend time with Mr Stedman on the fourth Sunday of each month from 10.00am to 4.00pm and on the Sunday of that weekend for the same period if he gave the mother notice of wanting this, and from 10am on Saturday to 4.00pm on Thursday of the 3 shorter school holidays and for one week during the Christmas school holidays.
The Independent Children’s Lawyer’s position at the end of the hearing was that [X] should live with Mr Ligar and spend time with the mother on alternate weekends from Friday to Monday and for half of the school holidays and that [Y] should live with the mother and spend time with Mr Stedman for half of the three shorter school holiday periods each year and for two weeks over the Christmas school holidays.
The Evidence
Mr Ligar relied on his amended initiating application filed on 30 May 2013 and his affidavit and the affidavit of his mother Ms L filed on 2 December 2013.
Ms L attached to her affidavit a report from Dr P, a paediatrician who saw [X] on 22 August 2013 and Dr P was made available for cross-examination.
Mr Stedman relied on his amended initiating application filed on 8 August 2012, his affidavit filed on 5 December 2013, and the affidavits of his father Mr S, [Z]’s mother Ms W, his sister Ms S and his friends Ms G and Mr P filed on 4 December 2013.
The mother relied on her further amended responses filed on 13 December 2013 and her affidavit and the affidavit of her partner Mr D filed on 10 December 2013.
The mother attached to her affidavit report of Dr M, a psychiatrist and Dr M was made available for cross-examination.
Ms B, a Family Consultant prepared family reports in May 2013 and November 2013.
All of the witnesses were cross-examined.
An assessment of the lay witnesses
In Adamson v Adamson the Full Court endorsed the following remarks by Kent J in Carlson & Fluvium:
As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved without it.[1]
[1] Adamson v Adamson [2014] FamCAFC 232 paragraph referring to Carlson & Fluvium [2012] FamCA 32
The Full Court went on to express the view that in parenting cases an adverse credit finding against a parent should only be made if it was necessary to determine the real issues joined between the parties and that if made it should be soundly based, with due allowance being made for the limitations referred to in Carlson & Fluvium, namely
a)the significant limitations in the capacity of the judge to use assessment of demeanour of a witness as an entirely reliable guide to his or her truthfulness and
b)the fact that human beings had a tendency to reconstruct or rationalise or even misconstrue past events or conduct or engage in self justification when recounting events in a highly emotive setting or in respect of highly emotive issues making the distinction between an account which on the one had was honest although wrong and on the other hand a deliberate and calculated obfuscation difficult to draw.
I bear these observations in mind but in this case as in so many parenting cases which involve allegations of violence, child abuse, drug use or alcohol abuse, mental health issues and serious parenting capacity deficiencies, it is both necessary and essential to make some assessment of the credit of the lay witnesses and this may involve making adverse credit findings
A general finding about a witness’s credit cannot of course be used to automatically resolve all issues in dispute in favour of one party. The evidence about each issue in dispute must still to be assessed and a determination made (if it is possible to do so) about where the truth lies and moreover it might turn out that even if a dispute is resolved in favour of one party it is not because the other party is found to have been deliberately untruthful but rather because they are found to be mistaken.
However a finding about credit overall does have a place as an aid to making findings about individual issues in dispute and moreover in parenting cases a finding about credit may assist the court to determine the weight it should give to a parties evidence about things they intend to do or refrain from doing in the future.
Mr Ligar was a laconic witness but I found him honest and responsive. He non-defensive when asked about why he made no effort to find [X] between mid-2008 and mid-2010.
Ms L was a straightforward and credible witness. It was notable that Mr Ligar and Ms L displayed no animosity and some empathy toward the mother during these proceedings.
Some of Mr Stedman’s evidence was deeply troubling.
Mr Stedman gave colourful evidence in his affidavit about the death of his dog and about certain actions by Mr D but when cross-examined about these incidents his evidence became inconsistent and unbelievable.
Mr Stedman told a number of stories which cast himself in the light of a rescuer and saviour which had a strong ring of implausibility. As I observed to Ms B when she was cross-examined the fantastical and bizarre evidence given by Mr Stedman during cross-examination caused me to feel very uneasy about him.
Mr Stedman’s capacity for exaggeration and embellishment if not outright fabrication was well illustrated by the information he gave to a paediatrician about [Z] on 5 October 2012.
According to the paediatrician Mr Stedman informed him that the mother had abused [Z] by dragging him up the hallway by his hair, spitting on and biting him and dragging him by the ears. This was not replicated in Mr Stedman’s trial affidavit.
According to the paediatrician Mr Stedman stated that he had contacted the police many times but nothing was done. The paediatrician also reported that:
[Mr Stedman] says he was also himself stabbed in the face with broken glass (but I note he has no scars). These events occurred around about September 2011 in [omitted].[2]
[2] Exhibit O
During cross-examination Mr Stedman insisted that the paediatrician had misunderstood him in respect of the stabbing with broken glass when he was in fact describing the thrust of the glass toward his face.
I find this difficult to accept given the paediatrician’s comment that he could see no scars and doubly difficult to accept given the resonance of this passage in the paediatrician’s report with something which occurred during cross-examination. Mr Stedman alleged in his trial affidavit that that Mr D had once stabbed in him in the arm and said that he had a scar as a result but when asked during cross-examination to point to the scar he said that he could not be sure which scar related to the stabbing.
I was not assisted by much of the evidence of Mr Stedman’s supporting witnesses.
Mr P, Ms G and Ms S all spoke highly of the father’s parenting of [X], [Y] and [Z] and of his patience, cleanliness and housekeeping skills but they were all in Mr Stedman’s camp and I have to treat their evidence with some caution, not because they are necessarily being untruthful but because of the risk that they gave selective evidence with a view to helping Mr Stedman.
Mr P’s affidavit was full of generalities on which I can place no weight such as:
[Mr Stedman] was very family oriented and continues to be.
[The mother] was quite aggressive to [Z] and favoured her other son [X] greatly.
I have always seen [Z] being a kind and playful brother to [Y].
The danger inherent in placing too much weight on the negative evidence of these witnesses about the mother was amply illustrated during cross-examination of Ms S. In her affidavit Ms S said that every time she went to the mother’s home there were no sheets on the children’s beds. She was asked in cross-examination if she had asked the mother why there were no sheets on the bed and she responded:
She said they were in the wash
The paternal grandfather Mr S said in his affidavit that he had seen the mother slapping the children’s faces and throwing things at them but in cross-examination he denied having seen those things.
The mother was an unreliable witness. Evidence in her affidavit about the actions and reactions of Mr Ligar and his mother around the time she fell pregnant with [X] were not only inconsistent with their evidence but inconsistent with their actions over time.
The mother’s evidence for example that while she was pregnant with [X] Mr Ligar taunted her by saying “I made you fat so no one else would want you” was totally inconsistent with the evidence that Mr Ligar was extremely distressed when he found out that the mother was pregnant and initially hoped that she would have a termination. Moreover a variation of this was put to the father by the mother’s counsel in cross-examination. Mr Ligar was then alleged to have said to the mother “While I was with you I used to feed you junk food to make you fat” (which Mr Ligar also denied).
The numerous suggestions by the mother that Mr Ligar was a controlling person were not credible in the light of his passive behaviour between 2008 and 2012, first in not trying to find [X] and then in giving in repeatedly to the mother about the time he should spend with [X].
There were other examples of the mother conveying the wrong impression in her affidavit. She said for example that she did not approve of her children being smacked, but admitted in cross-examination that she had smacked [X] in the past and had only stopped smacking him after she moved to Sydney in August 2012 and she put this down to his behaviour improving, not to her changing her philosophical attitude to smacking.
The mother answered “I don’t recall” to questions such as whether she had called [X] a sociopath or threatened to throw him in a dumpster.
In summary I considered Mr Ligar and his mother to be credible and reliable witnesses and considered Mr Stedman and the mother to be unreliable witnesses whose evidence I should treat with caution.
Background
The mother, Mr Ligar and Mr Stedman are all close in age.
The mother and Mr Stedman became casually acquainted when they were at high school in [T].
In about 2005 the mother, then aged about 18, moved to Sydney and began working as an exotic dancer (stripper) in Kings Cross.
In 2006 the mother attempted self-harm and was briefly admitted to [R] Hospital ([R]).
In September 2006 the mother met Mr Ligar, then 19, on an internet site. Mr Ligar has at all times lived in Western Sydney. He and the mother met in person about a month later and commenced a relationship.
A few months after the relationship commenced the mother informed Mr Ligar that she was pregnant. Mr Ligar was distressed and asked the mother to have a termination. He expressed a number of concerns including his own low paid employment, the disclosures the mother had made to him about her past mental illness and the fact that she had was working as a stripper at Kings Cross.
The mother refused to terminate the pregnancy and in time Mr Ligar came around to the idea of being a father. His mother Ms L was very supportive when she was informed of the pregnancy.
In March 2007 when she was about four months pregnant the mother decided that she wanted to return to [T]. She asked Mr Ligar to go with her but he was unwilling to do so and the relationship ended. However the mother kept in touch with Mr Ligar and in April 2007 informed him that she was expecting a boy.
The mother lived in [T] with one of her sisters until about June 2007 and then went to [C] in Queensland to live with another of her sisters. [X] was born in [C] [in] 2007.
The mother informed Mr Ligar of [X]’s birth and he, his mother and his sister Ms M flew to Queensland when [X] was about two weeks old and spent the weekend there. They met [X] and I accept Mr Ligar’s evidence that they bought some clothes and a pram for him and that Mr Ligar gave the mother $250.00 cash.
In November 2007 at Mr Ligar’s invitation the mother brought [X] to Sydney. They stayed at Ms L’s place for about a month (Mr Ligar was living elsewhere) until Ms L’s partner found them an apartment nearby. I accept Mr Ligar’s evidence that he and his mother supplied furniture for the apartment.
The mother stayed in the apartment for about four months and during this time Mr Ligar assisted with the care of [X] although the parties did not live together.
Mr Ligar said that during this period the mother became increasingly irritable and irrational and that he took her to a GP who prescribed Lithium. The mother agreed that she suffered from post-natal depression and was prescribed Lithium at this time.
In April 2008 the mother informed Mr Ligar that she wished to return to [T] and she left Sydney with [X] shortly afterwards.
In July 2008 the mother informed Mr Ligar by text message that she was not going to give him her address in [T] and for the next two years Mr Ligar had no contact with the mother.
At some point during this two years Mr Ligar became depressed and attempted suicide by cutting his wrist but he quickly changed his mind and called an ambulance. He was taken to hospital and diagnosed with depression and prescribed Zoloft. He said that one of his issues was despair about being able to see [X] but that he also still had strong feelings for the mother and had a lot of mixed feelings. He continued to work during this period.
In September 2008 the mother moved to [omitted] and lived there with her mother for a year. She returned to [T] in the second half of 2009 and it was at this point that she met Mr Stedman again and commenced a relationship with him.
Mr Stedman was then 21 and had a son [Z] born [in] 2008 who was living with him.
The mother fell pregnant very soon after this relationship commenced.
During interim proceedings in this matter in November 2012 I commented on how difficult I found it trying to determine from the material when Mr Stedman and the mother actually lived together in the same house and that did not become any clearer during the final hearing.
Mr Stedman said that he and the mother commenced living together in rented accommodation in late 2009 but separated not long afterward. The mother said that they commenced living together after she became pregnant and that Mr Stedman and [Z] moved out in February 2010.
[Y] was born [in] 2010 and whatever the status of the live in relationship between the mother and Mr Stedman during the first half of 2010 they remained in contact and Mr Stedman was present at [Y]’s birth.
In early July 2010 Mr Ligar received a text message from an unknown number. He was informed that the mother was pregnant with a boy whom she intended to call [Y]. The message purported to be from the mother although it was actually sent by Mr Stedman. Mr Stedman informed Mr Ligar that he was worried for [X]’s safety.
At or about the time of [Y]’s birth [in] 2010 Ms L rang Mr Stedman and obtained some further information. On 6 August 2010 Mr Ligar, his mother and his auntie drove to [T] and the next day went to the mother’s home to see [X].
Mr Ligar said that when [X] saw him he took his hand and asked him to play and that he felt an instant connection with [X] and spent several hours playing with him. Mr Ligar and his family also took [X] shopping and to McDonalds.
At some point after [Y]’s birth Mr Stedman and the mother resumed cohabitation but Mr Ligar did not meet Mr Stedman on the 6 August visit, which rather suggests that the mother and Mr Stedman had not resumed cohabitation at that point.
In September 2010 the mother sent Mr Ligar a message which said:
I’m having a hard time coping with [X]’s behaviour. Could you take him for a while?[3]
[3] Mr Ligar’s affidavit paragraph 75
Mr Ligar agreed to do so. He drove to [T] the following Saturday and collected [X] who spent a month with him in Sydney. Mr Ligar’s evidence which I have no reason to doubt was that this visit was a roaring success.
The mother agreed that [X] could spend a further two weeks with Mr Ligar in December and he spent time with Mr Ligar at his home in Sydney from 4 to 20 December 2010.
The mother would not agree to another visit in Sydney after this.
Mr Ligar was very disappointed. He tried to persuade the mother to change her mind and in August 2011 began a practice of sending [X] an A4 envelope every week containing things such as letters, photos, and lollies and colouring in pages and on several occasions a toy.
In October 2011 Mr Ligar approached Relationships Australia about mediation and the mother was sent a letter inviting her to take part. The mother responded angrily to Mr Ligar after she was contacted about mediation. He continued to send the weekly envelopes.
Telephone mediation took place in December 2011 and the parties agreed that Mr Ligar could ring [X] at set times and see him every second month at [omitted] McDonalds with the mother present. The mother requested that Mr Ligar send the envelopes monthly instead of weekly.
It is impossible to be sure when the mother and Mr Stedman finally separated. The mother said that she left Mr Stedman in April or May 2011 and went to a refuge but this must have been a temporary separation. Mr Stedman said that he and the mother ceased living together at Christmas 2011 and the mother referred to moving into a house in [T] on 17 December 2011 following a separation from Mr Stedman so the final separation seems to have occurred in late December 2011.
There can be no doubt that for at least some of the period between 2010 to 2012 the mother suffered from debilitating mental health problems and the children were exposed to conflict between the mother and Mr Stedman and less than satisfactory parenting. I will deal with this in greater detail later in the judgment, but there is nothing to suggest that Mr Ligar was aware of this at the time or had any means of becoming aware of it.
Mr Stedman and the mother gave different versions about the care arrangements for [X] and [Y] after their final separation.
Mr Stedman maintained that both children lived primarily with him until February 2012 when [X] began living primarily with the mother and [Y] began living with each parent in a shared care arrangement night about during the week and on alternate weekends.
The mother maintained that [X] and [Y] spent three days with
Mr Stedman while she set up her new home in December 2011 and that after that [X] lived with her and [Y] lived three days each week and each alternate weekend with Mr Stedman and that she only agreed to this because Mr Stedman insisted on it.
The mother continued to suffer from mental health problems after her separation from Mr Stedman and in February 2012 Benevolent Society worker who were involved with the mother expressed considerable concern about her mental health and her care of [X]. I will return to this also at a later time.
During the first half of 2012 Mr Ligar telephoned and sent the monthly envelopes as had been agreed at mediation and in January and March 2012 he saw [X] at McDonalds Singleton for three hours. He asked the mother for additional time but she would not agree. The reason the mother gave for not agreeing to further visits in Sydney or further visits without her being present was that [X] had been very difficult to handle upon his return from the extended visits with Mr Ligar.
In March 2012 the mother took [X] to see a psychologist. She informed Mr Ligar that test results indicated that [X] had mild intellectual disabilities, oppositional behaviour and attitudinal problems. Shortly after this she took him to see a paediatrician and informed Mr Ligar that the paediatrician considered that [X] was “autistic, towards the Asperger’s end of the spectrum.” She said that this meant that [X] needed to stay in routine without disruption or he had “huge meltdowns.”
Mr Ligar and his mother had a bi-monthly visit with [X] in [omitted] on 5 May 2012. Ms L took [X] shopping and bought him a quantity of clothing and also a gift to give his mother on Mother’s Day.
On 30 April 2012 the mother commenced a relationship with Mr D. She alleged that Mr Stedman was angry and in early May 2012 sent her a text message saying:
I’ll kill you and Mr D and take [Y]
Mr Stedman admitted threatening to kill Mr D but denied threatening the mother.
The mother reported the matter to the police and they applied for an Apprehended Domestic Violence Order (ADVO) for her protection. An interim order was made in the absence of Mr Stedman on the first return date of 22 May 2012.
The mother said that [Y] and [X] were included as protected persons but that is not evident on the copy of the interim order which she annexed to her affidavit.
[Y] came into Mr Stedman’s care on 25 May 2012 pursuant to prior arrangement and was due to be returned to the mother on 28 May 2012 but Mr Stedman refused to return him.
Mr Stedman attended court on 29 May 2012 as he had been ordered to do to collect a copy of the ADVO. He did not bring [Y] with him but said that he would return him to the mother if she signed a document agreeing that [Y] would spend each alternate weekend from Friday to Monday with him and that neither party would relocate from [T].
The mother signed the document at court but later said that she did so because she felt that she had no choice but to do so in order to obtain [Y]’s return and that she subsequently decided that it would not be in [Y]’s best interests to abide by the agreement.
Mr Stedman collected [Y]
from the mother on 8 June 2012 in accordance with the agreement but on 9 June 2012 the police attended at his home and said that the mother required the return of [Y] and
Mr Stedman handed him over.
On 11 June 2012 Mr Stedman rang Mr Ligar and informed him that he had seen the mother abusing [X] by dunking his head under water and throwing things at him, pulling his hair, choking him and slapping his face. He alleged that the mother was mentally unstable and was refusing to take her medication.
Mr Stedman was not challenged during the hearing about his motivation for making this call but given that it was made so soon after [Y] had been taken from him it has to be open to question whether
Mr Stedman was entirely honest with Mr Ligar or told him an embellished and alarming story hoping to enlist him as an ally in his cause against the mother.
Mr Ligar said that he was overwhelmed by the things Mr Stedman told him and that he had some sceptism about the information as he hardly knew Mr Stedman. He sought legal advice and was told to try to arrange mediation as a first step.
Mr Ligar said and I accept that during a telephone conversation with [X] on 16 June 2012 [X] said “Can I come and stay with you?” but I cannot read too much into such a statement by a then four year old.
On 7 July 2012 Mr Ligar had his scheduled visit with [X] at [omitted]. It commenced at McDonalds but due to the beautiful sunny day the parties moved to a nearby park for a picnic.
On 1 August 2012 Mr Ligar contacted Mr Stedman and informed him that the mother was intending to move to Sydney the following Friday.
On 7 August 2012 Mr Stedman filed an application in the Local Court at [T] seeking orders concerning [Y]. The matter was listed for interim hearing on 8 August 2012 but on that day the parties signed an agreement which permitted the mother to relocate from [T] provided that [Y] lived with the parties in a two week about arrangement. The mother was required to be responsible for all travel between Sydney and [T] subject to Mr Stedman paying her $50.00 each return trip.
The proceedings were transferred to the Federal Circuit Court in Newcastle and in due course the matter was listed for interim hearing in the Tamworth Circuit on 2 November 2012.
On 9 August 2012 Mr Ligar, who had no objection to the mother moving to Sydney, filed an application in the Federal Circuit Court at Sydney seeking orders about spending time with [X].
The mother signed a lease on premises in Sydney on 10 August 2012 and in late August 2012 she and Mr D relocated to Sydney with [Y] and [X].
The mother brought [Y] to [T] to spend two weeks with Mr Stedman commencing on 1 September 2012 but a dispute arose between the parties about the meaning of the order that Mr Stedman pay the mother $50.00. The mother interpreted it to mean that she would receive $50.00 when she brought [Y] up and $50.00 when she collected him two weeks later. Mr Stedman interpreted it to mean that he was required to pay the mother $50.00 in total for each two week block of time.
As a result of Mr Stedman not agreeing to the mother’s interpretation she did not bring [Y] to [T] on 29 September 2012 as required by the court orders.
Mr Ligar’s application came before Judge Altobelli in the Federal Circuit Court at Sydney on 17 September 2012. He made orders for [X] to live with the mother and spend time with the father each alternate Saturday between 10.00am and 3.30pm with changeover at [omitted] McDonalds. He transferred Mr Ligar’s application to the Federal Circuit Court at Newcastle with a view to an interim hearing in the matter being consolidated with the interim hearing in the matter of Stedman & Gibney.
An interim hearing was conducted in Tamworth on 2 November 2012 in respect of both matters. It was ordered that [X] live with the mother and spend time with Mr Ligar each alternate weekend from 10.00am on Saturday to 3.30pm on Sunday and in school holidays and on special occasions.
It was ordered that [Y] live with the mother and spend time with Mr Stedman each third weekend from 3.00pm Friday to 12 noon Sunday with changeover to take place at [T] Children’s Contact Centre and on one occasion each month from 3.00pm Friday to 6.00pm Sunday if
Mr Stedman travelled to Sydney. It was ordered that Mr Stedman give the mother a $50.00 fuel card at the end of each visit.
On 26 November 2012 orders were made for the preparation of a family report in each matter.
[X] spent time with Mr Ligar uneventfully between 2 November 2012 and the matter returning to court in May 2013 following the release of the family report. [Y] did not however spend time uneventfully with Mr Stedman.
In February 2013 the mother claimed that she had car trouble which meant that she was not able to travel more than a 30km radius from [omitted]. She also said that she was in receipt of Centrelink benefits and could not afford lengthy travel and could not afford to replace her car. She refused to take [Y] to [T] and offered to pay Mr Stedman $50.00 fuel money per weekend.
Mr Stedman reluctantly agreed to drive to Sydney and collect [Y] and return him provided that the mother gave him the fuel money.
Ms B, a Family Consultant, conducted interviews for the family reports in March 2013. By the time of the interviews Mr Ligar was seeking an order that [X] live with him and Mr Stedman was seeking an order that [Y] live with him and also an order that [X] spend time with him. The mother continued to propose that both children live with her.
Ms B prepared two separate reports, although there was considerable overlap in the information in each report, and they were released to the parties on 28 May 2013.
I will refer to Ms B’s May 2013 reports and also to her later November 2013 reports extensively in this judgement. Her reports provide valuable assistance in this matter. Ms B was meticulous in inspecting subpoena material, was not successfully challenged about the factual accuracy of her summary of that material or of other matters in her report, supported her opinions with careful and cogent reasoning and was responsive and helpful in cross-examination.
Following the release of the May 2013 reports Mr Ligar and Mr Stedman both filed interim applications seeking that their respective children live with them. An interim hearing was conducted on 31 May 2013 and on 3 June 2013 orders were made placing both [X] and [Y] in Mr Ligar’s care. No orders were made on that day about the children spending time with the mother.
The order in respect of [Y] was made at the urging of the Independent Children’s Lawyer and with Mr Ligar’s consent but this placement lasted only a few days. Mr Ligar and Ms L decided that [Y] was pining for his mother and returned [Y] to her.
On 7 June 2013 interim orders were made which provided for [X] to live with Mr Ligar and spend time with the mother each Saturday between 10.00am and 5.00pm with changeover to take place at Ms L’s place of employment in [omitted].
An order was also made that [Y] live with the mother and spend time with Mr Stedman each alternate Saturday from 10.00am to 4.00pm and also on Sunday (no more than once each month) from 10.00am to 4.00pm with changeover to occur at [omitted] Police Station.
On 1 August 2013 the competing applications in both matters were listed for a combined final hearing in December 2013. Given the change in circumstances following the 7 June 2013 orders an up-dated family report was also ordered.
[X] spent time with the mother regularly on one day each weekend (usually Saturday but occasionally by agreement Sunday) until the hearing commenced in December 2013
[Y] did not spend time regularly with Mr Stedman as Mr Stedman was frequently unable to afford to travel to Sydney. By November 2013
Mr Stedman had spent time with [Y] on only five occasions. By agreement he had one overnight with [Y] at his brother’s home in Sydney during this period.
The hearing commenced on 16 December 2013 but was unable to be concluded in the four days allocated to it and had to be adjourned to 28 May 2014.
On 19 December 2013 orders were made by consent for [X] to spend time with the mother on Christmas Eve/Christmas Day 2013 and for a block of 2 day late in December 2013 and on each alternate weekend from 6.00pm Friday to 5.00pm Sunday commencing on 10 January 2014 with changeover to continue to take place at Ms L’s place of work at [omitted].
The hearing concluded on 28 May 2014 with cross-examination of
Mr D and Ms B and submissions.
Mr Ligar’s circumstances
Mr Ligar is 27. When the proceedings commenced he was living with Ms K and had been for over two years. Ms K attended the family report interviews in March 2013 and made a favourable impression on Ms B.
That relationship ended at or around the time orders were made for [X] to live with Mr Ligar and for either the whole or most of the time those orders have been in force Mr Ligar and [X] have lived with Ms L. Her current residence is a spacious home in [omitted].
Ms L is 55 and is an [occupation omitted]. She is content for Mr Ligar and [X] to live with her for as long as they want. Common sense suggests that Mr Ligar may form a new relationship and move to his own place again in the future but if the past is anything to go by it will be in Western Sydney.
Mr Ligar’s father and his sisters Ms A and Ms M all live in the area and Mr Ligar enjoys the unwavering support of his family in his endeavour to be a good father to [X].
Mr Ligar commenced working at McDonalds in his teens and worked there until July 2013. He decided to cease work then to allow him to better assist [X] during the transitional period. He said that he intended to return to work in the future but hoped to take a different career path rather than return to McDonalds.
Mr Ligar does not have a criminal record or any problems with drug use or alcohol abuse.
Mr Ligar has suffered from depression in the past. He made a suicide attempt in the period between 2008 and 2010 when he was not seeing [X] and Ms B who thoroughly inspected all subpoena material referred in her report to a suicide attempt in December 2006 and superficial self-harm at some unnamed time.[4]
[4] First Family Report Ligar & Gibney paragraph 60
Mr Ligar was prescribed Zoloft in 2008 but has not taken it for over two years. Ms B saw no sign in either of her interviews with him that he was currently struggling with any mental ill issues. There was no suggestion of any recent suicide attempts or self-harm and the following observation by Ms B is in my view soundly based:
[Mr Ligar] appears to have established very positive coping and reflective capacities in the face of complex and stressful circumstances.
[X] was enrolled at [S] Primary School after the change of residence. Mr Ligar drops him at school and either he or his sister Ms A collects him after school.
Mr Stedman’s circumstances
Mr Stedman is 26. He has lived in [T] all his life (save for about 10 months in Melbourne) and his parents and two adult sisters live in [T].
Mr Stedman said that he was on good terms with the mother’s sister Ms E who lived in [T] and who has young children. He was not challenged about this but he was not an especially credible witness and gave some quite exaggerated evidence so I am not prepared to make a finding that placing [Y] with Mr Stedman in [T] will necessarily give [Y] ready access to his extended maternal family.
Mr Stedman has had the primary care of his son [Z] since [Z] was about two years of age. [Z]’s mother is Ms W. Ms W’s evidence suggested a level of dissatisfaction about how this came about but she has never sought through any court process to change [Z]’s living arrangements. Ms W lives in [T] and is now married. [Z] spends either two or 3 nights a week with her.
Mr Stedman lives in suitable rental accommodation which is close to [Z]’s school. In his trial affidavit he said that he worked part time at Coles as a check-out operator. He does not need care for [Z] on school days and said that his sister Mr Stedman was willing to care for [Y] when he was at work if [Y] lived with him.
Mr Stedman said that he had used cannabis in his teens but no longer did so and there was no evidence to contradict this. He was not asked to do drug tests during the course of the proceedings.
Mr Stedman has suffered from depression since his teenage years. He agreed that when he was about 15 he took steps to hang himself by throwing a rope over a tree in a park although he did not go through with it and that he had self-harmed by cutting his arms when he was a teenager.
Ms B considered that Mr Stedman was less than frank about his recent mental issues. She said as follows:
He adamantly denied any recent self harm or suicidal ideation, and adamantly denied ever threatening to kill himself in the context of conflict or separation from the mother.
The information provided by Mr Stedman regarding his mental health would appear inconsistent with information gleaned from subpoenaed records from Northwest Health. These records indicate that Mr Stedman experienced suicidal ideation in 2009 to a degree similar to when he was fifteen years old and ‘tried to hang himself’. Throughout 2011 it appears that Mr Stedman experienced depression, anxiety and suicidal thoughts. He was referred to a psychologist early 2012, but did not attend the appointment. By May 2012 Mr Stedman appears to have been experiencing ‘daily anxiety attacks’ and was medicated. In July 2012 it appears that Mr Stedman continued to experience suicidal thoughts and in the context of ‘major depression’, however, he had ceased taking his medication. Mr Stedman appears to have declined a voluntary admission to hospital because of the current Court proceedings, so was referred to a psychiatrist. Records indicate that Mr Stedman did not attend his appointment with this psychiatrist on 18/07/2012.[5]
[5] First Family Report Ligar & Gibney paragraphs 98, 99
Ms B was not challenged about the accuracy of her summary of the information from the subpoena material.
In his trial affidavit Mr Stedman said that in May 2013 he obtained a referral to see a psychologist and that after being on a waiting list for 6 months he commenced seeing Mr K in November 2013. He produced a letter from Mr K in which Mr K confirmed that he had seen the
Mr Stedman on six occasions and that he had presented with a depressed mood which Mr K considered was due to Mr Stedman’s circumstances particularly involvement in this litigation. Mr K expressed no concerns about Mr Stedman.
Mr Stedman has much more recent concerning mental health issues than Mr Ligar and in addition during cross-examination Mr Stedman gave some quite bizarre evidence, for example casting himself as a rescuer or giving graphic but illogical evidence about injuries to a dog, and during cross-examination about his mental health issues he made the following odd comment:
I’ve been assessed for different personality disorders and found not to have any.
These things cause me unease and I am by no means satisfied that all likelihood of Mr Stedman suffering mental health problems is behind him. It goes without saying that mental health problems can affect parenting capacity, although of course if the condition is properly managed and treated that need not be so.
Mr Stedman has convictions for driving while suspended/disqualified in 2006, 2007 and 2008 and a conviction for assaulting Ms W’s step-father in 2006. He maintained that he was innocent of the assault. He said that he did not remember pleading guilty and was at court by himself that day and did not know what he was doing.
There was no dispute that Mr Stedman sent a text message to the mother in May 2012 threatening to kill Mr D. However he disputed also threatening the mother.
The mother’s circumstances
The mother is 28. At the time of the hearing she and Mr D were living in a four bedroom house in [D].
The mother has worked as an exotic dancer (stripper) and said that she had qualifications in body piercing and that one of the advantages she saw in moving to Sydney was that body piercing work would be more readily available.
In her trial affidavit the mother said that she was undertaking a Bachelor of [omitted] through the [omitted]. She also said that she was working casually as a [omitted] and provided evidence that she had commenced that employment in August 2013.
The mother has no criminal record and there were no allegations that she had used illicit drugs. There were allegations that she had mis-used prescription drugs but this is better considered in the context of considering the mother’s mental health.
There was no dispute that the mother had suffered from mental health problems for many years.
The mother provided some information about this in her affidavit. She agreed that she was admitted to [R] for a short period in 2006. She said that during her pregnancy with [Y] she was prescribed Sertraline for a few months but stopped taking it because it made her feel distressed. Following the birth of both [X] and [Y] she was suffered post-natal depression and was prescribed Lithium.
The mother also said that following [Y]’s birth she was prescribed Lovan for a few months but stopped taking it because it was affecting her moods.
She said that she saw another doctor who prescribed Lamotrigine which she took for a year and ceased taking because she could not afford it.
The mother said that in March/April 2012 she saw Dr G and was prescribed anti-psychotic medication which she was unhappy with. She said she did not take it and was unmedicated for a few months. There were suggestions in the material that the mother self-medicated with pain killers.
The mother saw Dr S in May 2012 and said that she had told Dr G that she was psychic and he had taken this to mean that she was psychotic and placed on an anti-psychotic agent.
Greater detail about the mother’s mental health problems was contained in the subpoena material and Ms B summarised the contents of various records in her reports and she was not challenged about the accuracy of this summary
Documents produced on subpoena confirmed that the mother was admitted to [R] Hospital ([R]) for a brief period in about 2006 after self-harming. She was prescribed medication and diagnosed with Bipolar Disorder and Borderline Personality Disorder.
The mother told Mr Ligar about this admission and the diagnosis after they formed a relationship in late 2006.
[X] was born in 2007.
The mother ceased taking her medication in 2008 and in July 2008 while she was living in [T] she was referred to the Brighter Futures Program by the Department of Family and Community Services (DOCS) because of concerns about her parenting capacity because of her mental health.
Numerous concerns were noted in DOCS records around the care of [X] including him smelling and not being bathed properly and appearing dishevelled and dirty and being fed inappropriate or inadequate food. The mother’s engagement with the Brighter Futures program continued until February 2009.
In late 2009 the mother commenced a relationship with Mr Stedman and told him that she had been diagnosed at [R] with bi-polar 2 and borderline personality disorder. Mr Stedman said that during their relationship the mother attended doctors at North West Health and obtained medication.
There is no indication in the records that the mother received any specific treatment for mental health issues again until 2010 when she sought assistance for depression and recommenced medication. She also re-engaged with the Brighter Futures Program in 2010.
In June 2011 the mother underwent a mental health assessment with
Dr F, Clinical Director of the Black Dog Institute. Ms B reported as follows:
Notes pertaining to this assessment indicate that the mother had tried numerous medications, all of which she believed were ineffective. It appears that the mother was not taking any medication specifically prescribed for her mental health at the time of the assessment, however, reported taking nurofen and endone for ‘migraines’. In addition to Bipolar I disorder, Dr F diagnosed the mother with anxiety symptoms including social phobia, panic disorder with agoraphobia and height phobia. However, he stated that he was not confident to support a diagnosis of Borderline Personality Disorder at that time. Dr F prescribed a different medication for the mother in June 2011, although when he reviewed her again in September 2011 her mental health was noted to be “unstable” and he recommended an increased dose of the medication. (Northwest Health).
The mental health problems from which the mother suffered in 2010, 2011 and 2012 impacted on her behaviour in interpersonal relationships and on her parenting capacity. I will refer later in the judgment to evidence about the mother’s parenting capacity and treatment of the children historically but the flavour of what was happening in the home when she lived with Mr Stedman is illustrated by the evidence given by both the mother and Mr Stedman about an incident which Mr Stedman said occurred in July 2011 but which COPS records suggest occurred on 27 August 2011.
Mr Stedman said that the mother began picking up the photo frames in the house and throwing them to the ground smashing them. He said that when he tried to calm her down she grabbed a piece of shattered glass and said “You’re a cunt, you don’t care, why don’t you take this and kill me with it?” He said that while he was holding [Y] she slapped him across the head. Mr Stedman said that he went to the neighbours and called the police.
The mother alleged that Mr Stedman called her a bitch for not having enough photos of [Z] up and said that she deserved a hole in the head and was worthless. The mother said that she threw a photo frame onto the floor smashing the glass and then picked up a piece of glass and held it out to Mr Stedman saying “Go on, do it.”
When police arrived they could not determine who was telling the truth and they asked Mr Stedman to leave.
In October 2011 the mother was referred to a private psychologist. She attended appointments in November 2011 and January and February 2012. Ms B said that:
During these appointments the mother reported ‘a decline in empathy for others; low motivation and high irritability, recent over spending; and auditory hallucinations (believes that she is psychic). Nevertheless the mother did not want to increase her medication as previously recommended to her because it was too expensive, and instead, reported that she was using approximately sixteen pain killers per day to self medicated. (It is noted in subpoenaed records from the Department if Family and Community Services dated February 2012 that the mother was using up to two packets of Nurofen Plus, but generally about fourteen pills, per day. On 03 February 2012 the mother reportedly drove “high on pain killers” with [X] in the car).
The mother did not attend her next appointment with Ms H, reportedly citing that she had ceased all medication and would not be attending. Ms H noted in April 2012 “Ms Gibney’s participation during the session was very limited. She demonstrated very rigid thinking and limited capacity to recognise the impact of her own decisions on her situation. There were a number of concerns about her verbalisations regarding her child and her reported responses to her child which resulted in a risk of harm report”
Overlapping this in February 2012 the mother was referred to a psychiatrist by her GP Dr G because according to him she thought she might be hypo manic. Dr G’s notes record that the mother was hearing voices and seeing shadows and was resistant to taking medication which might make her fat.
The mother did not like the advice she received and sought a second opinion in May 2012 from a psychiatrist Dr S. Ms B reported that she appeared to have denied some of the symptoms previously reported to Dr G and said that Dr G has misinterpreted “psychic” as “psychotic.” She expressed reluctance to take medication and based on the information the mother provided to her Dr S said that she was willing to trial a period without medication provided that the Community Mental Health Team kept an eye on the mother.
During cross-examination by Counsel for the Independent Children’s Lawyer the mother made admissions which confirmed the accuracy of the information in the subpoena material and she has remained unmedicated but she insisted at the trial that she did not currently have any problems with her mental health.
No doubt as a result of concerns expressed in the first family report the mother sought a referral to a psychiatrist and saw Dr M in July 2013.
The only information about this attached to her affidavit was a very brief letter signed by Dr M stating that at the first appointment the mother had presented well and without any evidence of acute psychiatric symptoms and he had not prescribed any medication and had scheduled a review appointment.
Dr M provided a report dated 11 December 2013 to the mother’s solicitor.[6] His sources of information for the report were the [R] records and information provided by the mother. He said that he had not been able to find any evidence to substantiate a primary psychiatric diagnosis and that there were no psychiatric contraindications for her to parent her children.
[6] Exhibit Q
The difficulty is that Dr M did not have available to him all of the material relevant to the mother’s mental health and he was relying partly on the mother’s self-report and the mother has not been frank with others in the past her symptoms.
Dr M was cross-examined. He was unhelpful and highly defensive of his position.
It is impossible on the state of the evidence to conclude that the mother has any particular diagnosis, but the information taken as a whole suggests that the mother has struggled with ups and downs in her mental health for at least 8 years, that from time to time the state of her mental health has impacted on her parenting capacity and behaviour in interpersonal relationships, that she is resistant to taking medication because it might make her fat or otherwise affect her in a way she does not want and that she has doctor shopped to obtain an opinion which supports her.
There was no evidence however that the mother had suffered any debilitating mental health problems since moving to Sydney. She insisted that this was the case and while she was not a witness of credit there was nothing else – for example police call-outs to her home or concerns expressed by [Y]’s day care centre – to cast doubt on her evidence that her mental health was currently stable. I have to accept therefore that this was the case at the time of trial, but the mother’s history is such that it is impossible to be sure that she will not suffer further mental health difficulties in the future.
The mother is in a relationship with Mr D. He is 33. When he signed his trial affidavit in 2013 he was studying [omitted] but when he gave evidence on 28 May 2014 he said that he had commenced an apprenticeship as a [omitted] in January 2014.
Mr D has two children, a son [name omitted] who he does not see and another child in Queensland who he also does not see.
Mr Stedman claimed that Mr D was a bad man who used many aliases, was very violent and had sold drugs.
Mr D said as follows in his trial affidavit:
I have prior drug charges from before Ms Gibney and I met. I have never been involved in thefts, assaults or have ever had warrants issued for my arrest. I do not take drugs, smoke or drink alcohol and I have never sold illicit drugs.
In the light of Mr D’s criminal record, the information in COPS records and answers Mr D gave in cross-examination this is a carefully crafted statement.
Mr D was convicted of larceny and making a false statement to obtain money in 2008, drive while licence suspended and exceeding the speed limit on 8 January 2010 and driving while disqualified and possessing a prohibited drug on 14 May 2010.
In respect of the drug conviction Mr D said that he charged over a bag of white powder which he believed was speed. He claimed that he was not aware that the bag was in the handlebar pannier on his motorbike.
Mr D said that he commenced using cannabis in his teens and used it on and off throughout his twenties. He alleged that he had stopped using it because it was getting him nowhere in life. He was asked if he had used ice and said no.
Mr D agreed that there was a police report that he had harassed and sexually assaulted a flatmate in 2009 and had threatened to stab her but said that these were malicious allegations. He was not charged.
Mr D has had mental health issues. He admitted to Ms B that he had a history of self-harm by cutting and that he had been diagnosed with ADHD when he was 14 and had experienced some depression.[7]
[7] First Family Report Ligar & Gibney paragraph 89
On 25 November 2006 Mr D’s then girlfriend called an ambulance believing that he had overdosed. Mr D agreed that he had been using drugs prior to being taken to hospital and that he and his girlfriend had been arguing and that he was yelling at her when the police arrived. He denied any deliberate attempt to harm himself and said that he took a large quantity of valium because he was “trying to get away from his girlfriend.” He agreed that he told police that he had been using cannabis and taking other drugs before the incident.
The mother told Ms B in March 2013 that she was aware that Mr had had mental health issues and had used drugs and had a criminal record but said that these things were in the past. She said:
It’s not my role to judge someone.[8]
[8] First Family Report Ligar & Gibney paragraph 79
Mr Stedman made a number of serious allegations about Mr D in his affidavit. I will deal later in the judgment with his allegations about
Mr D assaulting [Z] and his allegation about Mr D stabbing him but he also said that he found his dog a bloodied mess in his garage and that he was informed by [Z]’s mother Ms W that Mr D had killed the dog by beating him with a metal pole.
Mr D denied this and when Mr Stedman was cross-examined about it he was unable to provide convincing evidence that the dog had been beaten as opposed perhaps to being hit by a car.
Given Mr D’s criminal convictions and the information in the subpoena material about the occasion when he was taken to hospital some of Mr Stedman’s evidence about him, for example about seeing him smoking cannabis, is not inherently incredible, but other parts of Mr Stedman’s evidence such as the evidence about the assault on [Z] which was difficult to swallow and the evidence about Mr Stedman being stabbed which was even harder to swallow means that I cannot accept any of Mr Stedman’s evidence about Mr D.
However the fact that Mr D has the criminal convictions and past issues with drug use and has had mental health problems means that I must have some concern about whether he might pose a risk of harm to the mother and her continued stability and potentially to the children.
The children’s best interests
Any orders I make about [X] & [Y] must be orders determined by treating their best interests as the paramount consideration, and S.60CC(2) and (3) of the Family Law Act 1975 set out the matters to which I must have regard in order to determine their best interests.
I intend to make findings about the additional considerations in s.60CC (3) first and then return to the primary considerations in s.60CC(2).
The first of the additional considerations is any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views.
Ms B interviewed [X] in March 2013. She said that she found his speech somewhat difficult to understand but reported that he was clear to say that he wanted to spend more time with Mr Ligar.
On 3 June 2013 orders were made for [X] to live with Mr Ligar. The mother alleged that since then [X] had said to her that he wanted to come home and that he became upset, teary and clingy during visits.
Mr Ligar said that the problem was the opposite and that [X] was resistant to going to his mother and had to be reassured that he was only going for a visit. He said that [X] told him that the mother was pressuring him to say that he wanted to live with her and that [X] found this upsetting.
Ms B said that she observed a marked improvement in [X]’s speech in November 2013. She reported that he told her that he had changed homes since the last interviews and that he was scared at first but was happy now. Ms B reported that [X] spoke positively about the father and his family and about his time with the mother and [Y] and that he also spoke positively about his (new) school and his teacher and the friends he had made.
Ms B also said as follows:
At the completion of the interview as the family consultant was leading [X] back to his family in the childcare room, the family consultant asked [X] “is there anything you may have forgotten to tell me today?” [X] said “yes. Mum told me to tell you I want to live with her, but mum said if you ask if anyone told me to say that I have to say no”. [9]
[9] Second Family Report Ligar & Gibney paragraph 53
I am satisfied on the basis of Ms B’s November 2013 report that [X] is content and settled living with Mr Ligar and that there is nothing to suggest that he has a pressing wish to return to live with the mother. I also incline to the view that Mr Ligar’s report of what [X] has been saying to him is reliable, because Mr Ligar was a laconic witness not given to exaggeration and [X]’s comment to Ms B during the second report interviews confirmed part of it.
[X] is of course only 7 (and was only 6 at the time of the November 2013 family report interviews) and his views such as they are are only one factor to be taken into account and cannot determine the outcome in this case.
[Y] was not interviewed by Ms B on either occasion because of his age.
The next additional consideration is the nature of the relationship of the children with each of their parents and any other persons including any grandparents or other relative of the children.
Mr Ligar said that he had a close relationship with [X] and that [X] had told him that he felt safe with him. Ms L gave the same evidence.
For reasons given above I incline to accept Mr Ligar’s evidence as he was a calm witness not prone to exaggeration and embellishment and his evidence is born about by the observations of Ms B in both May 2013 and November 2013.
In her May 2013 report Ms B said that:
Observations of [X] with the father, [Y], Ms K and the paternal grandmother, indicated that [X] shares a very close and affectionate relationship with each of the paternal family members, however, demonstrated a primarily close relationship with the father. He appeared to enjoy being physically close with the father, their interactions appeared reciprocally warm and responsive, and [X] primarily sought him out to meet his needs.[10]
[10] First Family Report Ligar & Gibney paragraph 122
Ms B also observed “reciprocally warm and comfortable interactions” between [X] and the father and his family in November 2013.
I accept that [X] has a good and close relationship with Mr Ligar and that he also has a good relationship with his paternal grandmother
Ms L. There is no reason to doubt, although it was not the subject of any close inquiry at the hearing, that he has a good relationship with other members of the Ligar extended family.
It was the mother’s case that she had a close relationship with [X] and [Y] but she was not a reliable witness and Ms B’s evidence raises some concerns about the mother’s relationship with the children.
Ms B was troubled about the observations of the mother with [X] and [Y] in March 2013. She said as follows:
When the mother entered the childcare room, [Y] ran to the furthest corner of the room, turned his body away from the mother, and screamed “no”. Each time the mother attempted to engage [Y]; he replied by screaming “no” and refused to engage her. The mother repeatedly asked [Y] to come to her; at one stage [Y] ran from his position in the corner of the room and threw himself on a nearby lounge, banging his head into the lounge. He then ran back to the corner of the room. The mother told the family consultant several times “he’s not usually like this”, while also conceding that “he does this when I leave him sometimes”. While it was noted that [Y] exhibited separation distress during each changeover, he was not observed to exhibit such distress with anyone else he engaged with throughout the Family Report process.
Ms B was also troubled about [X]’s interaction with the mother in the he strove unsuccessfully to get her attention.
For reason to be given later in the section on parenting capacity I am satisfied that between [X]’s birth and the mother’s move to Sydney in August 2012 the mother did not provide [X] with consistently good day to day care and that he was exposed to domestic disputes between the mother and Mr Stedman and some rejection by the mother. There was no evidence that the mother’s care of [Y] or her attachment to him was quite as poor but he was certainly in the home during domestic disputes and was with the mother during periods when the Benevolent Society in [T] expressed concerns about her coping capacity.
Ms B said as follows:
The information available for this report indicates that the mother has exhibited long-standing patterns of vulnerability and emotional dysregulation, mis-attunement to the children’s needs, limited empathy for the children, and periods of active hostility towards the children. These experiences would have been extremely confusing and frightening for [X] and [Y], and would have evoked feelings of insecurity, distress, and fear of abandonment in their relationship with the mother. Unfortunately, in terms of the nature of the children’s relationship with the mother, negative feelings may be reactivated between them during general interactions between them. This may explain why in the observation sessions of the children with the mother, their responses to her were highly disorganised and distressed. Sadly though, such repeated stimulation of these negative emotions with an attachment relationship for young children can substantially inhibit a child’s healthy developmental progression and may result in children exhibiting a range of emotional and behaviour issues.
Ms B’s observation of the interaction between the mother and children in November 2013 was much more encouraging. She observed [X] to smile and hug [Y] and then hug the mother when she approached him. The mother joined [X] in his play activities and [Y] moved between independent play and play with the mother and [X]. Ms B considered that the mother’s interaction with both children on this occasion appeared more attentive and comfortable.
Ms B did however in the second family report make the following observation about [X]’s relationship with each of this parents:
There is no dispute that the mother has been the primary attachment figure for [X] to date. However, if [X] has experienced inconsistencies in the mother’s emotional availability and parenting practices, and if he has experienced repeated feelings of fear or insecurity in his relationship and environment with the mother throughout his childhood, then it is likely that the level of security of this attachment relationship has been substantially impaired. This may explain why the majority of the reports of [X]’s adjustment at this time are very positive, despite the fact that his time with his primary attachment figure has been considerably reduced.
I am satisfied on the balance of probabilities and the totality of the evidence that [X]’s strongest attachment currently is to his father.
The mother’s interaction with [Y] in November 2013 was satisfactory and Ms L’s evidence was that when he was placed with Mr Ligar in late May/early June 2013 he did not settle and pined for his mother. [Y] has spent the majority of his life in the primary care of his mother and the evidence about the mother’s interaction with him did not suggest the same level of difficulty in that relationship as in the relationship between the mother and [X]. I am prepared to conclude that the mother is [Y]’s primary attachment figure and that as at November 2013 the mother and [Y] had a good relationship.
Mr Stedman said that he had a strong loving relationship with [Y], and Ms B’s observations suggested that they did have a good relationship.
Ms B said that during the first report interviews [Y] squealed with delight upon seeing Mr Stedman and [Z] and approached Mr Stedman and physically embraced him. She said that during the second report interviews [Y] ran and physically embraced Mr Stedman when he saw him and Ms B found their interaction to be warm and comfortable.
Mr Stedman maintained that he had a good relationship with [X] and that [X] had no fear of him, but Mr Stedman was not a reliable witness. Mr Ligar told Ms B in March 2013 that [X] seemed anxious and scared when brought into the presence of Mr Stedman.
Ms B reported that [X] told her in March 2013 that he did not like Mr Stedman because he was a bad person who did mean things and she reported that [X] became very silent when told that he would be spending time with Mr Stedman as part of the report interviews.
Ms B said as follows about the observation of [X] with Mr Stedman in March 2013:
[X] was observed to be generally anxious in the presence of Mr Stedman. He walked slowly around the room, vigilantly watching Mr Stedman and [Y] for the majority of the session. On a couple of occasions the family consultant heard [X] quietly say to himself “I’m ok, I’m ok”, as if self-soothing, and his stutter appeared more pronounced. [X] was also observed to maintain a tight hold of two ‘security’ toys throughout the majority of the session. The family consultant observed these behaviours continually throughout the first thirty minutes of the session. Thereafter however, [X] appeared to settle. For example, at one stage he was comfortably playing with Mr Stedman and the other children, without realising that he no longer had hold of his ‘security’ toys.
[X] tried to engage Mr Stedman in discussions about his feelings throughout the initial stages of the session and Mr Stedman was observed to be very calm and responsive to [X]. At one stage [X] said to Mr Stedman “I told her (the family consultant) that I was scared of you”. Mr Stedman responded by stating “well you haven’t seen me for a long time”. [X] then told Mr Stedman “and I wasn’t sleeping for a long time ‘cause…”; Mr Stedman then interjected and said “that’s no good, are you ok now?”. [X] replied “yeah, I was just a little bit sick”. At another stage [X] sought to clarify who Mr Stedman was in relation to his family. He said “why is [Y] um…are you his dad?”
[X] also tried to engage Mr Stedman in discussions about general matters such as school and time that he spends with his father. However, he was generally observed to maintain physical distance from Mr Stedman.
I am satisfied for reasons to be given later that during the time he lived with Mr Stedman and the mother [X] was exposed to domestic arguments and had a troubled relationship with his mother. It would not be surprising if [X] viewed Mr Stedman with some trepidation, and Ms B’s observations do not suggest a strong and close relationship between [X] and Mr Stedman.
Apart from that I intend to make an order for equal shared parental responsibility. This could mean that the parties have to come back to court over some unforeseen issue in the future but that is not good reason to remove the mother’s right to have a say about future decisions, the precise nature of which cannot necessarily be anticipated at present, when she will be a continuing part of [X]’s life.
The presumption of equal shared parental responsibility does not apply as between the mother and Mr Stedman as both have committed acts of family violence and they have a poor and conflicted relationship. However paradoxically I consider that I should make an order for equal shared parental responsibility despite their poor and conflicted relationship.
This is because I have concerns about both of them. They have both exposed [Y] to a volatile household and some family violence. They both have concerning mental health issues and I do not have the same confidence in their capacity to make good decisions as I do in
Mr Ligar’s. It would be preferable for [Y] if they were required to consult about major long term decisions about him even though it is possible that an order for equal shared parental responsibility will be honoured in the breach rather than the observance.
Ms B’s recommendations
As noted earlier Ms B prepared two (in fact four but essentially two) thorough insightful reports which contained carefully considered opinions and recommendations.
In her first report Ms B expressed the view that the material available to her suggested that [X] had experienced physical and psychological abuse, neglect and exposure to family violence in the mother’s care, and there is ample evidence to support this view.
Ms B expressed concern about the fact that the mother had mental health issues but had been resistant to medication over the years, appeared determined to obtain an assessment which supported her view that she did not need medication and had admitted abusing codeine-based medication in order to cope as well as her outbursts of aggressive behaviour and her self-reported “lack of empathy” for other.
Ms B said as follows:
The information available for this report indicates that the mother has exhibited long-standing patterns of vulnerability and emotional dysregulation, mis-attunement to the children’s needs, limited empathy for the children, and periods of active hostility towards the children. These experiences would have been extremely confusing and frightening for [X] and [Y], and would have evoked feelings of insecurity, distress, and fear of abandonment in their relationship with the mother. Unfortunately, in terms of the nature of the children’s relationship with the mother, negative feelings may be reactivated between them during general interactions between them. This may explain why in the observation sessions of the children with the mother, their responses to her were highly disorganised and distressed. Sadly though, such repeated stimulation of these negative emotions with an attachment relationship for young children can substantially inhibit a child’s healthy developmental progression and may result in children exhibiting a range of emotional and behaviour issues. [20]
[20] First Family Report Ligar & Gibney paragraph 150.
Ms B further said as follows:
Emotional and behavioural issues for [X] may also be representative of psychological trauma that he may be experiencing as a result of the past abuse, neglect and exposure to family violence that he has experienced in his family. In order for reparation of any such trauma to occur, [X] will require an environment which is consistently safe, secure and predictable, and free from circumstances which may activate symptoms of trauma and impair the process of reparation for him. As such, it may be necessary that any time that [X] spends with the mother is limited and supervised. [21]
[21] First Family Report Ligar & Gibney paragraph 153
Ms B was of the view that Mr Ligar demonstrated a sound capacity for empathy and attunement and nothing in the evidence I have heard suggests that this view is invalid.
Ms B said that she could see no benefit to the children in remaining with the mother save that they would stay together and maintain their important sibling bond.
She expressed the opinion that Mr Ligar was the preferred carer for [X] and that while the sibling bond was significant and important [X]’s “basic and overall developmental needs” had to be prioritised.
Ms B’s recommendation was that [X] live with Mr Ligar and spend supervised time with the mother. She did not support an order that [X] spend time with Mr Stedman.
What to do about [Y] posed a more difficult problem.
Ms B expressed concern about what she observed between [Y] and the mother on the day of the first interviews and said that he like [X] might be experiencing psychological trauma as a result of his environment with both the mother and Mr Stedman. She said that the current level of discord and hostility in the environment posed an additional risk of harm. She said that:
Both parents (and Mr D) expressed extremely negative sentiments about and towards each other to such a degree that it is difficult to understand how either parent will effectively promote a close and continuing relationship for [Y] with the other parent. It would appear that the only moderating feature in [Y]’s family environment at this time is the support available to him through [X]’s paternal family.
Ms B expressed considerable concern about Mr Stedman. She was of the view that the evidence suggested that Mr Stedman had:
actively participated in and/or failed to protect the children from the abuse and risks within their parenting environment over the past few years.
She also said as follows:
It is the family consultant’s view that issues regarding the father’s mental health and personality may also require some consideration in this matter. Records pertaining to the father’s mental health indicate that he has experienced ‘major depression’ and suicidal ideation quite recently; however, it is concerning that the father does not appear to have complied with recommended assessments and treatment, and that he minimised his mental health issues throughout the Family Report process. The father also exhibits high levels of preoccupation with the parental conflict, the mother’s relationship with Mr D, and the Court process, and demonstrates poor coping capacities at this time.
Allegations of family violence are also of concern in this matter, particularly alleged threats by the father to kill Mr D (leading to the current AVO between the parties), and previously alleged threats that the father would kill himself and/or the children. While the father denies making these threats and may deny intent associated with these threats, such behaviour demonstrates that the father has substantial difficulties regulating his emotions and reactions to situations; thereby, perpetuating the emotional intensity and chaos within the children’s environment. Similarly to impact on the children of the mother’s behaviour, the father’s behaviour is likely to evoke fear and insecurity for the children in their parenting environment. [22]
[22] First Family Report Stedman & Gibney paragraphs 112, 113
Ms B did not support [Y] remaining with the mother but also did not support a placement with Mr Stedman. She said as follows:
The impact of the father’s proposal that [Y] live with him is that he may also endure further physical and psychological harm and neglect. [Y]’s psychological safety and wellbeing may also be impaired as a result of continuing exposure to the father’s emotional dysregulation and poor mental health and coping. [Y]’s relationship with the mother may not be promoted in any positive way if he were to live with the father, given the degree of acrimony expressed by the father towards the mother and Mr D. The father’s proposal will also separate [Y] and [X], (yet unite [Y] with paternal half sibling [Z]). However, the father has demonstrated a capacity to negotiate with Mr Ligar, and therefore, [Y]’s relationship with [X] may be upheld via negotiation between them; notwithstanding the constraints associated with the geographical distance between them. [23]
[23] First Family Report Stedman & Gibney paragraph 119
Ms B’s recommendation about [Y] in the first family report was as follows:
Neither parent’s proposal would appear to be in [Y]’s best interests. It is therefore recommended that the Department of Family and Community Services be invited to intervene in these proceedings to consider alternate placement options for [Y]; including examining the prospect of placement with [X]’s paternal family. [24]
[24] First Family Report Stedman & Gibney paragraph 122
On 3 June 2013 [X]’s residence was changed and he commenced spending time with the mother during the day only. After a slight disruption [Y] remained with the mother and continued (or at least continued to be entitled) to spend time with Mr Stedman.
In the second family report prepared in November 2013 Ms B supported [X] continuing to live with Mr Ligar and commented that for a number of reasons his relationship with his mother might have been enhanced and not undermined by the change of residence, the reasons being that [X] was now spending time with the mother from a secure base and that the spend time with arrangement placed less strain on the mother’s emotional availability and parenting capacity.
Ms B noted that this would result in the permanent separation of the siblings but said that it also had some positives for their relationship, with [X] being more secure and feeling less need to be vigilant and protective of [Y] and the mother’s capacity to parent the siblings together when she did not have to do so frequently being enhanced.
Ms B considered this sibling relationship very important and noted that if [Y] commenced living with Mr Stedman their might be some concerns for the sibling relationship, arising out distance and
Mr Stedman’s lack of a strong relationship with [X] and some distrust which existed between Mr Ligar and Mr Stedman.
Ms B expressed concern in the second report about aspects of the mother’s parenting such as telling [X] he would be returning to live with her and making allegations about the father’s parenting of him which she might seek to draw [X] into. For that reason she tended to the view that the mother’s time with [X] should remain limited.
Ms B remained conflicted about what should happen for [Y] and she neatly summarised the dilemma posed by Mr Stedman as follows:
There has been some concern throughout this matter that the analysis of risk to [Y] has been complicated to some degree by behaviour by Mr Stedman since his separation from the mother which has included a series of alleged malicious and/or exaggerated and/or ill-informed allegations. His observed preoccupation with condemning the mother and Mr D throughout these proceedings, his repeated lack of child focus, his seeming direct and indirect participation in some aspects of the alleged harm to the children in the past, and the present inconsistencies between his alleged concerns for [Y] and his own commitment to parenting, perpetuate such difficulties in this assessment.[25]
[25] Second family Report Stedman & Gibney paragraph 79
Ms B acknowledged that Mr Stedman had the primary care of [Z] and felt hampered by lack of information about Mr Stedman’s parenting of [Z]. She felt that if an investigation of this showed no concerns about [Z] then this might lead the court to give serious consideration to Mr Stedman’s proposal that [Y] live with him.
Ms B stressed however the importance of the sibling bond between [X] and [Y] who had lived together until five months prior to the report and said that the fact that [Y] would be able to see [X] regularly if he remained with the mother might be a factor in favour of leaving him with the mother.
Ms B recommended that if the court considered that [Y] was at unacceptable risk of harm in the care of one parent he live with the other and that if the court considered that he was at unacceptable risk of harm with both parents the Department be invited to intervene. She recommended that if the siblings were separated consideration be given to them spending additional time together in the home of Mr Ligar.
Conclusion
Although the proceedings concerning [X] and [Y] were run concurrently I intend to start by considering their situations separately because their situations have been different since 7 June 2013.
In respect of [X] this is a not a matter to which s.65DAA of the Family Law Act 1975 applies because I do not intend to make an order for equal shared parental responsibility rather I intend to make a hybrid order. I am therefore not obliged to start by considering whether equal time or substantial and significant time with each of his parents would be reasonably practicable and in his best interests and if so to consider making an order of that kind.
Neither parent sought equal time in any event. Each parent sought an order that [X] live primarily with them and spend time with the other parent on weekends and during school holidays and I intend to consider the matter within the parameters set by the parents.
In support of the mother’s case for primary residence of [X] the mother’s counsel stressed that the evidence available to the court suggested that the mother had made great improvements in her parenting capacity in 2013. The day care centre [Y] attended raised no concerns about his care and the Department of Family and Children’s Services had done home visits as recently as November 2013 and expressed no concerns about the state of the mother’s home. They had also observed nothing in her interaction with [Y] which worried them.
Ms B had observed an improvement in the mother’s capacity to manage the children on the day of the November 2013 interviews and had observed the children to relate more calmly to her, and the mother had taken some steps to improve her parenting capacity and had completed a “Circle of Safety” course.
The mother had been reliable in spending time with [X] and apart from little issues which it might be open to the court to decide adversely against the mother such as the mother being belligerent at changeover and putting tattoos on [X] which were difficult to remove and making a few comments to him about where he should live and his weight, no issues were raised about the mother’s care of [X] during the visits. The fact that [X] came home and wanted food hardly demonstrated that the mother was not caring for him properly and while Mr Ligar said that [X] was sometimes reluctant to go there was no evidence of any major resistance at changeover to [X] going to the mother for visits.
Whatever the concerns about Mr D there was no evidence that the police had been called to the mother’s home since she relocated to Sydney or that Mr D had had any recent brushes with the law.
Finally the mother’s counsel submitted that the predominant concern of the court should be to reunite the siblings who had spent so much of their life together and who had a close relationship and enjoyed being with each other.
There are two major problems with this line of argument however.
The first is that while many of the mother’s problems as a parent might seem to be in abeyance it is impossible for the court to be confident that they will never recur.
No community concerns have been raised about the mother’s parenting in recent times but very significant concerns were raised intermittently about her parenting of [X] from [X]’s birth in 2007 until she moved to Sydney in August 2012. Her mental health problems impacted on her parenting capacity in terms of forming an attachment with [X] and being able to consistently parent him well and keep him safe, well fed and properly clothed and bathed and her resistance to remaining engaged with the same mental health professional, minimising her problems when moving on to a new doctor, resisting taking medication and self-medicating with over-the-counter drugs creates no confidence that the mother will seek and accept help if her mental health again becomes unstable.
The mother was transient from 2007 to 2012 and [X] experienced many changes of location as well as changes of home within [T].
The mother was in a dysfunctional relationship with Mr Stedman on and off between 2009 and 2012 during which she was verbally and sometimes physically aggressive to him and to [X] and [Z] and during which the police were called to the home.
Things may have settled somewhat for the mother since her move to Sydney but it remains unclear whether she has any ongoing mental health issues. Dr M said that he did not think she did but he was not privy to the records of all of the mother’s various medical attendances over the years and was largely dependent on information provided by the mother who might have her own motivation (not being prescribed medication which might make her fat or unable to function) for downplaying any problems she was experiencing.
Without evidence from a psychiatrist properly apprised of all the background information it is impossible to assess whether the mother’s issues are being properly managed at present or whether the mother is stable at the moment because her personal circumstances are stable but could easily relapse if she faces further life challenges.
Mr D, the mother’s current partner, is a man with mental health issues which have caused him to be hospitalised, a history of past drug use and a history of problems with two past girlfriends which have led to one complaining that he had assaulted her and the other applying for an ADVO.
Ms B was unimpressed with Mr D in two interviews and found him very self-focussed. The risk of problems arising in the mother’s relationship with Mr D are high and the risk that the mother will not have the capacity to cope with such problems without them affecting her parenting capacity are also high.
The second problem for the mother is that [X] has lived with Mr Ligar since May 2013 and has been very well cared for by a father who does not have any criminal history or drug or alcohol issues, who has strong family support and who can be trusted to ensure that [X] spends time with his other parent.
Since his change of residence [X] has settled at school and the behaviours which led to him being diagnosed as autistic and as having ADHD have largely disappeared.
Mr Ligar might re-partner and set up a home of his own in the future but everything suggests that it will be in the area where he is currently living and that any new relationship he forms is unlikely to be marked by the instability and changes of location and home which have marked the mother’s changes of relationship.
[X] is comfortable living with the father and while he loves his brother [Y] there was absolutely nothing to suggest that he had a strong desire or indeed any desire at all to return to the primary care of the mother.
[X] has endured many changes in his short life and Ms B said and I agree that in those circumstances imposing another change on him should not lightly be done. I do not intend to do it when everything suggests that he is being well cared for where he is.
The downside of this outcome is that Mr Ligar is not willing (and I make no criticism of him for this) to take [Y] and this will mean that [X] and [Y] will grow up in different households but as Ms B said while the sibling bond was important it was only one consideration. I simply cannot reverse an arrangement which has worked so well for [X] since June 2013 and place him back with the mother.
The Independent Children’s Lawyer supported an outcome of [X] remaining with Mr Ligar.
Ms B recommended in her first report that [X] spend supervised time with the mother and in her second report that time should be limited. [X] has however been spending alternate weekends with the mother from Friday to Monday for some time now and there was nothing to suggest that anything had gone wrong for him during this period.
There is a risk of [X] being exposed to neglect or family violence in the mother’s home in the future if he spends unsupervised time with her, for example because of a deterioration in the mother’s mental health or an incident occurring between the mother and Mr D. However some risks have to be taken if a child is to maintain a meaningful relationship with a parent and this is an acceptable risk. While it would be detrimental to [X] to be exposed to even one incident of violence,
Mr Ligar can be depended on to act promptly and appropriately if this occurs.
The parties agreed that if [X] continued to live with Mr Ligar the only appropriate order would be for the mother to spend time with him each alternate weekend from Friday to Sunday. Time during the school week and a return to school on Monday were agreed to be impractical, and there are other ways for the mother to be in touch with [X] on weekdays if she wishes for example by involving herself in the canteen or reading groups at his school. The burden of travel in these circumstances would all be on the mother.
The mother proposed that [X] spend time with her for a three week block during the Christmas school holidays. [X] could probably cope with this given his age but I am concerned that making an order for this to occur so soon after this decision is handed down could be fraught with difficulties.
The mother is likely to be unhappy with the decision and if [X] became aware of that over a lengthy period it could be unsettling and difficult for him. Keeping the time in shorter lengths for these holidays means that [X] will not be exposed to any distress of the mother’s for a lengthy period and will have the circuit breaker of going back to the father in between.
I also still have reservations about the mother’s parenting capacity and about Mr D both of which suggest caution about the length of time [X] spends with the mother.
I intend to order that time be for half of the Christmas school holidays from 2015/16 onwards unless otherwise agreed between the parties. This is because if the mother gets through another twelve months without any decline in her mental health or any incidents in her personal relationships the risk of future incidents is diminished and if anything does go wrong in the next twelve months Mr Ligar is likely to act and the whole issue of the mother’s time with [X] and not just time at Christmas will need to be revisited.
Turning to [Y], I intend to make an order for equal shared parental responsibility and I am therefore required by s.65DAA (1) and (2) to consider whether equal time would be in [Y]’s best interests and reasonably practicable.
Neither option would be reasonably practicable while the parents live such a distance apart and I can only consider which parent [Y] should primarily live with
Mr Stedman pressed for [Y] to live with him and the strength of his position is in the past parenting and mental health difficulties of the mother to which I have already referred in detail.
Mr Stedman submitted that he was a far better and more stable parenting option than the mother and that if [Y] could not live with [X] it would be of benefit to him to have a sibling relationship by living with [Z]. He also emphasised the benefit to [Y] of living in [T] where the paternal extended family and members of the maternal extended family lived.
He submitted that if [Y] moved to [T] the mother would be able to see him more frequently than just during the school holidays. She could travel to [T] and stay with family which would make this a more affordable option than him travelling to Sydney.
He submitted that although this would mean a substantial separation from [X] he could spend time with [Y] in [T]; he did not need to live with Mr Stedman in order to do so, he could live with a member of the mother’s family.
My first concern about this proposal is that [Y] is only four and is primarily bonded with the mother. He responded well to Mr Stedman at both family report interviews but Mr Stedman did not avail himself of all the visits he was entitled to pursuant to interim orders. In the second half of 2013 for example saw [Y] on only five weekends.
Because of the distance Mr Stedman and the mother live apart and because they are both in poor financial circumstances if [Y] commences living with Mr Stedman in [T] he will not be able to see his mother very frequently at all. He is far too young to have it explained to him in a way he is likely to understand why this change had happened and he could well struggle with it. He would suddenly and to him inexplicably move from living with his mother and Mr D and seeing [X] frequently to living with Mr Stedman and seeing his mother infrequently and [X] perhaps less frequently again.
If it was essential for [Y]’s safety to make this order and if I could be certain that his future would be dramatically improved by living with Mr Stedman then this change might have to be made regardless of the immediate adjustment difficulties it might cause [Y] but I am not convinced that this is the case.
All of the concerns about the mother which make her conspicuously the second best option to parent [X] are still there, but there are also concerns about Mr Stedman.
On the positive side he is parenting [Z] without intervention by child welfare authorities and without complaint by [Z]’s mother who gave evidence in the proceedings. However he had a volatile relationship with the mother that exposed children to second-rate parenting and risk of harm and he bears some responsibility for what happened during that period.
He has had mental health issues, he has an assault conviction and he made a threat against Mr D after he and the mother separated which resulted in an ADVO being made. His bizarre and fantastical statements in the witness box and his repeated claims to have been a rescuer caused me unease.
The decision about what should happen for [Y] is by far the more difficult decision in this matter, but in circumstances where there are no recent reported concerns about [Y], where [Y] is young and is bonded to the mother and would not be able to see her regularly if his residence was changed, where moving [Y] would result in a much more serious separation of [Y] and [X] and where I have a number of concerns about Mr Stedman’s parenting capacity I am simply not prepared to make this change at this time.
There is a certainly a risk that if [Y] is left with the mother that further proceedings will occur in the not too distant future but I do not consider that this is sufficient reason to order that [Y] live with
Mr Stedman now.
Counsel for the Independent Children’s Lawyer proposed that [Y] spend time with Mr Stedman during school holidays only. The mother proposed that time also occur on the fourth weekend of each term. This would have to be in Sydney as the distance between [T] and Sydney is such that a round trip on a weekend regularly would be too tiring for [Y].
Although I consider it unlikely that Mr Stedman will be able to travel to Sydney I intend to order that in addition to time during the school holidays time also occur on one weekend per school term in Sydney as agreed between the parties.
I intend to make an order for 2 one week blocks in the Christmas school holidays 2014. I am doing the best I can in circumstances where the holidays have already started. I intend to order that thereafter the time be for half the Christmas school holidays in one block.
[Y] is young but the report interviews suggested that he related well to Mr Stedman and he should be able to cope emotionally with such an arrangement.
In the interim orders made between the mother and Mr Stedman on
19 December 2013 an order was made by consent that the mother abide by all reasonable directions of the Department of Family and Community Services and all reasonable directions of her treating psychiatrist. These are motherhood statements and I do not intend to include them in the final orders.
I intend to make an order for the personal protection of [X] and [Y] that the mother be restrained from physically disciplining the children. This is necessary given the mother’s past actions in hitting the children and the risks that smacking could become an assault.
There were no allegations about Mr Stedman smacking [Y] or
Mr Ligar smacking [X] and I therefore do not intend to extend that restraint to them.
I have not made any orders about [X]’s surname as the issue was not addressed during final submissions on 28 May 2014. If it is considered necessary this issue will need to be the subject of a separate determination by the court.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgement.
I certify that the preceding five hundred and thirteen (513) paragraphs are a true copy of the reasons for judgment of Judge Terry
Associate:
Date: 22 December 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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