Marmara and Baccar

[2010] FamCA 593

FAMILY COURT OF AUSTRALIA

MARMARA & BACCAR [2010] FamCA 593

FAMILY LAW – CHILDREN – Best interests of children – Father afflicted with mental illness – Children suffering from anxiety – Consideration of s 60CC(4A) of the Family Law Act 1975 (Cth) – Meaning of the words “events that have happened”

Family Law Act 1975 (Cth) ss 60CA, 61DA(1), 61DA(4), 60CC(2), 60CC(3), 60CC(4), 60CC(4A)

Aldridge & Keaton (2009) FLC 93-421
Collu & Rinaldo [2010] FamCAFC 53
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520

APPLICANT: Mr Marmara

RESPONDENT: Ms Baccar

FILE NUMBER: CAC 151 of 2007

DATE DELIVERED: 16 July 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE:

7 & 8 July 2009

6 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S. Gill

SOLICITOR FOR THE APPLICANT: Evans Yeend Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr D. Durston

SOLICITOR FOR THE RESPONDENT: Rachel Bird & Co.

Orders

IT IS ORDERED THAT:

1. All previous orders made by the Family Court of Australia or by the Federal Magistrates Court of Australia in relation to the children of the parties, H, born … October 1998, and M, born … April 2001, are discharged.

2. The mother, Ms Baccar, have sole parental responsibility for H and M.

3. Notwithstanding order (2), the mother will inform the father by e‑mail as soon as practicable about:

   a.   All serious medical issues relating to the children;

   b.   Details about the children’s schooling including any information about the children’s progress;

   c.   Any major events in the children’s lives.

4. The mother will authorise and direct the following to provide information to the father upon his request about the children.

   a.   The children’s school, the school teachers and any counsellor at the school (in the last case subject to normal professional confidentiality);

   b.   The children’s doctors, dentists, therapists or other medical or allied professionals including information about the children’s treatment, any diagnosis and any prognosis from time to time.

5. The mother will consider consulting and discussing with the father major decisions affecting the children’s care, welfare and development.

6. Notwithstanding the above orders about consultation with the father, the mother will have the right to make decisions about the children’s long-term care, welfare and development.

7. The children will live with their mother.

8. Until H attains the age of 13 years, the time that both H and M spend with their father will be on a supervised basis as follows:

   a.   From after-school Friday to 5.00 pm Sunday on each alternate weekend;

   b.   One half of each of the Australian Capital Territory school holidays as agreed between the parties, or failing agreement, the second half;

   c.   On the father’s birthdays as follows:

   If falling on a school day, from immediately after school until 6.30 pm that day, and if falling on a non‑school day, from 9.00 am to 5.00 pm that day.

   d.   On the children’s birthdays as follows:

   With both children on each of the children’s birthdays with the father from after school to 6.30 pm if falling on a school day, and if falling on a non‑school day from 9.00am until 1.00pm that day.

   e.   In the year 2010 (and every year ending in an even number of a zero thereafter), from 3.00 pm Christmas Day until 3.00 pm Boxing Day; and in every year ending in an odd number thereafter; from 5.00 pm Christmas Eve until 3.00 pm Christmas Day;

   f.   If Father’s Day or Mother’s Day falls on a weekend when the children would ordinarily be with the parent for whom the celebration is not relevant, the children will spend that weekend with the relevant parent in substitution for the next weekend which will then be spent with the other parent; 

   g.   At such other time as agreed by the parents.

9. The nominated supervisors for the supervised time are the father’s parents, or some other person or persons agreed between the mother and the father.  Any such person should be given a copy of this Judgment to enable him or her or them to understand the background to these proceedings and the reasons why some form of supervision is necessary.

10. When H attains the age of 13 years, the time that both H and M spend with their father will be on a unsupervised basis as follows:

    a.   From after-school Friday to before school Monday morning;

    b.   As outlined in Order (8)(b) to (g) above.

11. Unless the parents otherwise agree, the father continue to accept treatment by way of injection of such therapeutic drugs as may be prescribed by his treating psychiatrist on a regular basis and the father will inform and keep the mother informed of the name and telephone number of the doctor who provides this medication and his psychiatrist and will authorise and direct the doctors and provide information about his health treatment to the mother if and when she requests such information.

12. In the event that the father fails to authorise and direct the doctors to provide the information identified in the preceding order, or in the event that the father does not continue to accept treatment as identified in the preceding order after H attains the age of 13 years, the father’s unsupervised time with the children pursuant to these orders will be suspended.  In this event, the unsupervised time will be reinstated upon the father providing to the mother satisfactory documentation from his treating doctor that he has resumed his therapeutic treatment as outlined in the preceding order, or if his treating doctor provides certification that the therapeutic treatment is no longer required.

13. The father continue to attend upon Dr L or any psychiatrist whom he may otherwise seek to consult on a regular basis in accordance with the directions of that psychiatrist for so long as that psychiatrist believes it is appropriate for the father to do so.  A copy of this Judgment may be provided to both his general practitioner and to Dr L to enable the Court’s reasoning about the father’s treatment and its potential impact upon the children to be explained as best it might. 

14. The children may telephone their father at 7.00 pm on each day.  If the children do not phone, the father may phone them at 7.00 pm on each day.  If the father is unable to make contact with the children by telephone at 7.00 pm then he may telephone them the following morning at 7:15 am in substitution therefor. 

15. Unless the parents otherwise agree, the duration of the telephone calls in the preceding order will be no more than 15 minutes. 

16. All extant applications, save as to any fresh application on the question of costs, are discharged.

17. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.  Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.

18. The matter be removed from the Pending Cases Inventory.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 151 of 2007

MR MARMARA

Applicant

And

MS BACCAR

Respondent

REASONS FOR JUDGMENT

Introduction  

1. This matter principally concerns the amount of time, and on what conditions, the applicant father, Mr Marmar, may spend with his children, H born in October 1998 and M born in April 2001.  Both parties agree that the children should primarily reside with the respondent mother.  The father sought for the parties to share equally parental responsibility for the children.  The mother sought that the present orders, which provide for joint parental responsibility, but with significant qualifications, be maintained.  Ultimately, the best interests of the children are the paramount consideration[1] in determining the amount of time, and on what conditions, the father may spend with his children. 

   [1] Family Law Act 1975 (Cth) s 60CA.

2. The father’s proposed minute of orders sought appears at Endnote 1.Endnote 1 The mother’s proposed minute of orders sought appears at Endnote 2.Endnote 2

3. On 13 February 2008, the interests of the parties in property were divided by consent.

Issues in dispute

1. The issues in dispute are fairly narrow but significant.  The father has a history of mental illness.  This has affected the relationship between the parties in part because of some of the father’s psychotic episodes which have involved the mother and the children.  The father admits that he has had suicidal ideation in the past.  The mother asserts that the father has been hostile and paranoid when the parties were together.  Counter‑allegations are made by the father about how the mother treats the children, particularly about her speaking to the children in a hostile tone. 

2. The mother made an allegation that the father had come to the mother’s home on 4 April 2007 at approximately 6:10 pm.  The father had learned that M had been injured after she had fallen off a set of “Monkey Bars” at her school on 31 March 2007.  The father refused to leave the mother’s home and continued to bang on the front door and to yell at the mother, demanding to see M.  The mother telephoned the police, who arrived shortly thereafter.  The mother instructed the children to wait in the dining room of the mother’s house, and told them to “not make a noise”.[2] The mother reported that the children were frightened and very upset by the incident.  The mother stated in her affidavit material that the father later apologised for his behaviour and that “he had not realised how frightened we had been.”

   [2] Affidavit of the mother, filed 2 June 2009, [100].

3. At the final hearing, the issues were very narrowly confined to specific instances where on the father’s account, the mother had been either negative about, or did not provide reassurance to, the children about the father’s mental state and his love for the children.  

4. The issues in dispute or for my determination are:

   a)Whether the children are able to safely spend time with their father on a supervised or unsupervised basis;

   b)Whether the children are emotionally able to spend time with their father on a supervised or unsupervised basis;

   c)Whether the children, particularly H, experience anxiety, stress or fear in relation to the time they spend, and the communication they have, with their father;

   d)The extent to which the parties are able to share equally parental responsibility for their children.

5. Because of the narrow parameters in which the matter was argued by both sides, I do not intend to make findings about, or to detail, the historical background to the parties’ relationship.  Where necessary I will assess the evidence of the parties about specific incidents involving the children and each other as part of my determination about the best interests of the children.

Procedural History

1. This matter commenced when the father filed an Initiating Application on 30 January 2007 in the Federal Magistrates Court of Australia (‘the Federal Magistrates Court’).  Following some procedural hearings during early 2007, the matter was transferred by Brewster FM on 2 April 2007 to the Family Court of Australia (‘the Family Court’).  The matter then commenced as a Less Adversarial Trial before me on 2 May 2007. 

2. On 21 August 2007, I made orders by consent which provided that the children could spend supervised time with their father on alternate weekends from after‑school on Friday until 2.00 pm on the following Sunday.  The father’s parents were to supervise this time at the father’s residence, unless the parties otherwise agreed to alternative supervisor or supervision agency.  The parties were to equally share parental responsibility.  The children and the father were able to call each other at any reasonable time. 

3. The order in relation to equal shared parental responsibility was couched in the following terms (Order 5, 21 August 2007):

   The parents will equally share parental responsibility for the children and each will communicate with the other as soon as practicable after the occasion arises about any matter which may affect the children’s welfare including but not limited to any matter affecting their health or wellbeing.

4. The father’s consent to the above orders was conditional upon his having an opportunity to make a further application for greater time spent with the children.  The father ultimately sought to achieve an “equal time” arrangement.  The father’s ability to file a further application was subject to his attending upon and obtaining a report from a treating psychiatrist about: his understanding of his illness; its effects; the effects of his medication; and his commitment to taking the medication and to maintaining wellness.  A further report from a second psychiatrist was also to be obtained to consider the same matters.  The parties were to equally share in the costs of preparation of both reports.

5. On 24 December 2007, the father filed an application in a case, effectively pursuing an equal shared parenting regime.  The father attached a report from the psychiatrists, Dr G and Dr W.

6. The mother filed a response on 24 January 2008, which sought to prevent the father from filing any further applications until “thorough” expert medical evidence had been obtained about the father’s capacity to parent in light of his mental health.  The mother resisted any change to the orders made by consent on 21 August 2007 until the evidence she sought to allay her concerns had been obtained and properly examined through the Court processes.

7. On 6 February 2008, I made an order facilitating the attendance of Dr W (Consultant Child Psychiatrist), Ms R (Child and Family Psychologist), Dr F (Psychiatrist) and Ms D, a Family Consultant of the Family Court, to give contemporaneous evidence.  These experts were before the Court on 27 August 2008.    The purpose of this process was to facilitate the process of their giving evidence about matters that were relevant both to the Court and to the children in light of the each other’s opinions.  The parties where then able to cross-examine each of the experts about the basis of their respective opinions.  At the end of the evidence taken on 27 August 2008, I ordered the preparation of a family report by Family Consultant D. 

8. On 18 March 2009, the matter came on before me for a continuation of the Less Adversarial Trial.  On that day, the father filed further proposed minutes of orders sought.  On an interim basis, the father sought to increase the amount of time he spent with the children from after school on Friday until Wednesday morning.  The father sought to remove the requirement for supervision.  The father pressed, on a final basis, his application for a shared parenting arrangement. 

9. On that day, I made orders discharging the orders made by consent with respect to telephone contact between the children and the father and substituted an order that the children may telephone their father at 7.00 pm each day.  It was furthered ordered that if the children did not telephone their father at that time, the father could make contact with them at 7.00 pm each day, or alternatively 7.15 am the following morning.  The duration of such calls was to be no more than 15 minutes.  I also directed that, in the event of the hospitalisation of either of the children or any requirement that they take medication, the mother provide the father with this information as soon as was practicable and to keep him apprised of any further developments.  I made orders requiring the father (with the assistance of the Court) to make his expert medical witnesses, Mr P and Dr L available for cross-examination. I reserved the question of an increase in any further time to be spent between the father and the children prior to the finalisation of the matter until I had the opportunity to hear evidence from Mr P and Dr L. 

10. Also on 18 March 2009, I discharged the order in relation to equal shared parental responsibility, and until further order, substituted the following:

    a.That when the children are with their mother if the children should be subject to hospitalisation or required to take medication which would continue during the time that they are with their father, or require special treatment which would continue during the time they are with their father such as a requirement for changing of bandages or similar such things, or if the children are the recipients of a referral to a specialist medical or associated industry practitioner then the mother will so soon as is practicable thereafter advise the father of those facts and will keep him informed of what is occurring.

    b.To the extent that the school or schools that the children attend have not been so notified by the parents each of the parents will notify the school that each of the parents is to be notified in the event that there is any significant matter which occurs at or in relation to the children’s schooling during the time that the children are associated with that school.

11. The effect of this order meant that the parties each exercised parental responsibility within the meaning of 61C of the Family Law Act 1975 (Cth).

12. The matter then proceeded to final hearing on 7 and 8 July 2009.  On 7 July 2009, contemporaneous evidence was taken by Ms R and Dr L in a similar way to the Court listing conducted on 27 August 2008.

13. Following a delay in the delivery of Judgment, for which I sincerely regret, I invited the parties to re-open proceedings to provide updating evidence about the present parenting arrangements.  The parties provided oral evidence to the Court on 6 July 2010.  The father also tendered documentary evidence from his treating General Practitioner and Psychiatrist.

Findings of credit

1. The father impressed me as a loving father who seeks to have a meaningful relationship with his children.  It is evident from the reports of Dr L that the father is conscious of the potentially deleterious impact of his mental state if he does not seek appropriate medical and psychiatric treatment.  I am impressed that he has sought treatment from his treating psychiatrist and that he has started and continued, (in accordance with the recommendation of Dr L), the injectable medication regime.  I find, however, for the reasons I will outline below, that the father lacks insight in relation to the emotional needs of his children. 

2. This lack of insight impacts upon the father’s ability to parent.  The insight which the father does not have is a crucial aspect in my assessment of the primary and additional considerations in determining what is in the children’s best interests.

3. The mother impressed me as loving mother who provides an important and stable support and foundation for the children’s emotional needs.  The mother impressed me generally as a truthful witness.  Importantly, I believe the mother when she says that she provides a calming influence to H when he is distressed.  This is important in my assessment of the primary considerations of what is in the children’s best interests.          

The evidence before the Court

1. The primary evidence in this matter is the report from the father’s treating psychiatrist, Dr L, dated 26 June 2009, and the contemporaneous oral evidence given by Dr L and Ms R, Child and Family Psychologist presently treating both children, on 7 July 2009. 

2. There are also two reports from Dr W, Consultant Child Psychologist, who interviewed the father in June 2007, and an updated report in December 2007.  There was also the contemporaneous evidence given by Dr W, Ms R and Dr F on 27 August 2008.  This evidence, while very thorough and illuminating, has been partly overtaken by the passage of time and developments to the father’s mental state up to, and beyond, the final hearing in July 2009.  Consequently, I place greater emphasis on the primary evidence in assessing what is in the children’s best interests. 

1. The father gave evidence on 7 July 2009.  The mother gave evidence on 8 July 2009.  The parties both provided updating oral evidence on 6 July 2010. 

Report of Dr L (dated 26 June 2009)

1. Dr L provided the following diagnosis for the father:

   The most likely diagnosis for [the father] is Schizoaffective Disorder.  His psychotic symptoms have been over a protracted period of time leading to distortion in his feelings, thinking and behaviour and actions to the extent that he would qualify for a diagnosis of Schizophrenia.  His mood disorder which appeared to pre-date his psychosis is characterized by a Major Depressive Disorder with suicidal ideation and at times melancholia.  These two diagnoses overlapped when he was hospitalized.  Although historically uncertain, [the father] himself believes that at time he may have suffered from hypomania as a result of medication which raises the possibility of Bipolar Affective Disorder II…Compounding the diagnosis are his personality traits which pre-existed representing a personality disorder of mixed type (not otherwise specified) with Anxious avoidance and Ananchastic and Schizoid features.    

2. At the initial interview with the father on 4 March 2009, Dr L observed that the father had “[c]oncretely…accepted his psychotic illness and the need for medication.  [The father’s] [j]udgment was impaired by his continued psychotic state.” Dr L also observed that:

   There appeared to be no evidence of melancholia or cognitive impairment.  He exhibited, no thought disorder his answers consistent with the questions and he certainly was no distracted.  Notably he continued to believe emphatically that all interactions were in some ways monitored or connected to conspiracies against him.  Insight was partial as he recognised his particular thinking style. 

3. Dr L recommended that the father engage in a medication and psychiatric treatment program which would provide “great reassurance to his children who have obviously been witness to some erratic behaviour and the distress felt by both parents.” Dr L recommended that the father have regular Risperdal Consta injections (a high potency anti-psychotic) every two weeks.  In Dr L’s opinion, this would ensure that “[the father’s] family and the court could be assured that he has an antipsychotic cover for the subsequent month (note however that it has to be administered every two weeks precisely) and will remain well.”  Notably, Dr L emphasised that “medication is the corner stone to [the father’s] remaining well.” 

4. The alternative to the injectable form of the medication was a similar tablet medication.  The mother submitted that the obvious disadvantage in the father’s taking this form of medication was that the father could choose whether to take the medication or not.  The father had a history of starting and ceasing medication in the past – to his detriment.  The mother submitted that the advantage to the injectable medication was that the father would have to report to his General Practitioner to receive the injections.  To his credit, and despite his preference to take a tablet form of the medication, the father properly conceded at the final hearing that he would undertake the injectable medication regime. 

5. In relation to the time that the father might spend with the children, Dr L recommended:

   Currently I would support the status quo regarding supervision requirements.  If my treatment program is agreed to and instigated by the court and supervised by the court then at a time determined by the court (not less than two months after injections commence) supervision requirements could be modified and after a further lapse of time if monitoring provisions are in place they could be completely removed.

6. Dr L concluded that:

   [The father] is a very keen and committed father and would very much like to have greater access to his children, preferably alone, and he has agreed that if not adversely affected he would undertake any treatment regime designated by the court.  The one advocated doesn’t require specialist forensic knowledge, it is a practical response to a psychotic illness that requires vigilance on the part of the court and [the father’s] treating team and his ex-wife.  I feel sure should all these treatment options be instigated then all parties can move forward to a better resolution of the situation within this family.  Without such a program in place I am unable to give the court any reassurances that [the father’s] psychiatrist situation will remain stable over a protracted period of time.  It is important to note that I have discussed these issues with [the father] himself and he is agreeable to whatever the court determine in this matter.

Contemporaneous evidence of Dr L and Ms R (final hearing on 7 July 2009)

1. Dr L and Ms R gave contemporaneous evidence on 7 July 2009.  Counsel for the parties were able to cross-examine both experts. 

2. On balance, Dr L’s evidence was confirmatory of the position he took in his written report.  Dr L gave evidence about the risk of worsening mental condition even if the father commenced and continued the injectable medication regime.  Dr L stated:[3]

   There is some risk, it's not high, but there is always some risk depending on the level of stressors that he's under, you know, some biological event, an illness or some other - there - or say a major psychological or social stressor could also make for him to become less well.

   [3] Transcript of proceedings, 7 July 2009, 39.

3. Ms R is the treating Child and Family Psychologist for the children.  Ms R highlighted the issue of the father “playing favourites” with M at the expense of H, as well as the anxiety of the children about their father.  Ms R gave the following evidence:[4]

   MS [R]: … [H] had had a bit of difficulty with his father in that he – he was concerned that his father was spending a lot of money on [M] and not on him and had – he felt like he was being left out both monetarily and also in attention.  And he wanted to talk to his father about it and every time he tried his father just said, “Life isn’t fair.  You’ve just got to accept it.  Life isn’t going to be fair”.  And that was fine.  But he then felt he didn’t want to talk to his father for a little while.  He told him he didn’t want to talk to him.  And he then became extremely frightened.  He said he was really worried that his father was going to come around and kidnap him, was going to come around and hurt him, and was having a lot of nightmares about it.  And [M] was also involved in that she had told his father that [H] didn’t want to talk to him.  At that time his father was ringing a number of times a day to try and talk to them.  And [M] had had to tell her father that [H] didn’t want to speak to him.  And she was really quite concerned about saying it too, because both of them are very frightened of their father’s anger. 

   MR DURSTON: Is there any suggestion that any other person, apart from their father, is responsible for their anxiety about their father’s anger?

   MS [R]:  Not that I could see.  Certainly when they speak to me they talk about their fear when he gets angry and their memory of very angry times.  I think a lot of their fear comes from memories of other times when their father was probably more unwell. 

   [4] Transcript of proceedings, 7 July 2009, 16.

4. Ms R identified the following primary concern, which is significant in the circumstances of this case:[5]

   Both children, to me, seem very parentified which means that they’re actually taking over a parent role in some way with their father.  And this can cause ongoing difficulties with adult relationships because they find it very hard to just let go.  And both the children, but particularly [H], I feel don’t really feel they can be kids.  They – they worry and care about their – their father much more than they should. 

   [5] Transcript of proceedings, 7 July 2009, 18.

5. Ms R expressed an opinion that as M grew older and more aware of her father’s mental illness she would likely want to look after her father and be more concerned about him.

6. Ms R gave evidence that the father had discussed the ongoing Court proceedings with H.  This had increased his anxiety.  Ms R reported that H is a “very sensitive and anxious little boy.”[6] Ms R stated that M is not as anxious as her brother, “…she’s also younger.  But she also does get quite frightened.”[7]

   [6] Transcript of proceedings, 7 July 2009, 18. 

   [7] Transcript of proceedings, 7 July 2009, 19.

7. Ms R reported that H expressed a wish for supervision by his paternal grandparents to continue.  Significantly, Ms R gave evidence that H is aware of his father’s mental illness and for the need for his father to continue to receive medication, and that “[H] gets very concerned as soon as his father tells him he stopped medication or he’s not seeing someone.”[8]

   [8] Transcript of proceedings, 7 July 2009, 25.

8. On the issue of the nature of the relationship between the children and their father and the supervised time they presently spend with him, Ms R gave evidence that:[9]

   I think they already have quite a good relationship with their father.  They care about him a lot, they love him.  They enjoy doing things with him.  I don’t think that having their grandparents there has made that difficult and I don’t – it seems to – they seem to be developing quite a good relationship with their father with their grandparents there, so I don’t think that it’s at all negative.

   [9] Transcript of proceedings, 7 July 2009, 35. 

9. Ms R also reported that the children feel safer when their paternal grandparents are present during the time they spend with their father.  Ms R acknowledged that the more that H experiences his father acting “normally”,[10] the more likely it is that H’s fear of his father would abate.

   [10] Transcript of proceedings, 7 July 2009, 31. 

10. Ms R agreed with Dr L’s recommendation about the surety of a medication regime and expressed some qualified optimism that the father may be able to spend short periods of unsupervised time with his children, subject to this being on a gradual timeline. 

11. Ms R reported that H undergoes “reality testing” with her as a means of developing strategies for coping with stress and anxiety.  Ms R reported that she had explored with H his feelings about certain incidents where his father had been angry in the children’s presence. 

12. Both Dr L and Ms R outlined a timetable by which the children might spend unsupervised time with their father.  Ms R suggested that when H was aged 12 or 13 years he should be able to manage as “he’d have more skills in being able to get help if he needed it.”[11] In Ms R’s opinion, M would be able to spend unsupervised time with her father at around the same time, as she is more resilient than her brother. 

    [11] Transcript of proceedings, 7 July 2009, 21.  

13. Dr L hoped for a “bit more therapeutic optimism”[12] and suggested that the time arrangements could be reviewed after two or three months after the medication program he recommended had been initiated.  

    [12] Transcript of Proceedings, 7 July 2009, 48.

Evidence of the parties of 7 & 8 July 2009

1. The father admitted to discussing the Court proceedings with his children.  The father gave evidence that he had explained to the children that the orders of the Court were unlikely to be “week‑about” arrangement.  The father reported that the children did not react to this proposition.  The father admitted to initially being “quite fixed” on the idea of a shared‑care arrangement and to having asked the children what they thought about spending a week with either parent.[13] 

   [13] Transcript of Proceedings, 7 July 2009, 60.

2. The father expressed a desire to be involved in the children’s counselling sessions with Ms R, or rather have “mediation sessions” with the children and Ms R.[14]  When challenged by counsel for the mother about this proposition, the father conceded that he would “take direction from [Ms R]” about whether this was appropriate or not.[15]

   [14] Transcript of Proceedings, 7 July 2009, 63.

   [15] Transcript of Proceedings, 7 July 2009, 64.

3. The mother denied that she directly or indirectly criticised the father, and confirmed her affidavit evidence that she always endeavours to speak with the children about their father in a “neutral and factual manner”.  When asked by counsel for the father if she had thought about speaking about the father in a positive manner, she answered that she “[spoke] about him in a neutral manner”.[16] The mother acknowledged that she is attentive and interested when the children talk about the positive things that they have done with their father.

   [16] Transcript of Proceedings, 8 July 2009, 8.

4. The mother gave evidence that H had relayed to her his concerns that if the father was to have “50/50 access”, the father would get him to school late.  

5. The mother gave evidence about the children being disappointed with their father for not keeping promises – such as the purchase of a house at N, New South Wales or allowing H to undertake music lessons.  Neither of these came to pass.   

6. The mother gave evidence that H became distressed and worried about whether his father would find out about a new pair of glasses he had recently obtained.  This arose as the mother had asked H not to tell his father until she had had the opportunity to communicate with the father (through the e‑mail process the mother engages in with the father) that the purchase had been made.  The mother stated that H was in a “high state of anxiety” that he was in “fear of his father”.[17] While stating that she had told H he would be safe from any harm, the mother did not disabuse H of the notion that his father might do something irrational or inappropriate if he was to find out from H about the purchase of the glasses. 

   [17] Transcript of Proceedings, 8 July 2009, 14.

7. The mother gave evidence that H had reported to her that he considered his father favoured M.  The mother reported that there had been telephone conversations between H and the father about this issue, and on occasion, H had been quite upset with his father.  The mother reported that when she heard H angry and upset with his father on the telephone.  She had comforted him.  The mother stated that H eventually hung up on his father.  The following evidence was then given by the mother:[18]

   [18] Transcript of Proceedings, 8 July 2009, 18.

   MR GILL: And then [H] said to you “You can’t say no to dad because he’ll do something. He’s going to come around, he’s going to do something to us.”?

   [THE MOTHER]: Yes.

   MR GILL: Did you do anything to disabuse [H] of that notion that his father was going to come around and do something?

   [THE MOTHER]: The first thing I had to do [H] was highly distressed; he was shaking, crying, barely able to speak so my main focus was trying to calm him down which took about 15 minutes to get him to even be able to speak the words of what he was feeling and his fear his father was going a come around and do something, so we talked through his feelings and I let him just sit and work out what he would like to do so, my main focus was just calming him down, and telling – again telling them as I always do, “You’re safe; you’ll be safe.

   MR GILL: Specifically did you tell him that his father was not going to come around and hurt him?

   [THE MOTHER]: I didn’t, no, no.

   MR GILL: Did you explain to him why he was safe?

   [THE MOTHER]: Because he was with me and we had secure – a secure house.

   MR GILL: Was that – do you think that communicates to [H] that the only reason why he’d be safe from his father is he wouldn’t be able to break in?

   [THE MOTHER]: Well, [H’s] fear was that his father would come around to the house and break in, and because I have secure doors his father would not be able to get in.

   MR GILL: Let’s be clear, the reason why – the reason that you expressed to [H] as to why he was safe with his father wouldn’t be able to break in?

   [THE MOTHER]: No, I expressed the main reason he was safe because he was with me and I would protect him.

   MR GILL: Did you think of expressing to him that his father would not be coming around to do something?

   [THE MOTHER]: No.

8. The mother also reported that M felt that she was caught in the middle of a tension between her brother and her father when engaged in telephone contact with her father.

9. The mother denied talking to the children about what they might do if their father was ill, but stated that she had encouraged them to call her at any time if they had “general worries” while in their father’s care.[19]

   [19] Transcript of Proceedings, 8 July 2009, 22.

10. The mother gave evidence that H had expressed concern about having to call his father every afternoon after school and that this was a source of anxiety for H.

11. The mother gave evidence that H manifests physical symptoms of anxiety in relation to discrete issues involving his father and that she attempts to calm him down with breathing techniques when this arises.

Evidence of the parties of 6 July 2010

1. Both parties pressed for their respective Minutes of Orders sought.

2. Counsel for the father identified that the parenting arrangements had not changed since the time of the final hearing in 2009 (which was consistent with the orders in place at the time of the final hearing).

3. The father tendered four exhibits on 6 July 2010.

4. The father tendered Exhibit ‘F4’, a letter dated 23 June 2010 from Dr L.  Dr L advised that the father had attended appointments with him on “12 April and 22 February, 2010.”  Dr L also wrote that “[the father] continues to seek guidance from me with another appointment booked for 2 August, 2010”. 

5. The father tendered Exhibit ‘F5’, a letter dated 22 June 2010 from a Dr S of T Medical Practice.  Dr S advised that the father had been “having regular fortnightly Risperdal injections since [25 September 2009].  [The Father] has remained well during this time.  [The father] has continued on his Zoloft during this time.”  The father confirmed this arrangement in his oral evidence. 

6. The father tendered Exhibit ‘F6’, a copy of an order of the Australian Capital Territory (ACT) Magistrates Court, a document entitled “Undertakings” which was made “by consent and without admissions” between the mother and the father on 9 November 2009, applicable for a period of 24 months from that date.  The father made the following undertakings:

   a)Not to cause personal injury to the mother;

   b)Not to behave in a harassing manner towards the mother;

   c)Not to be on the premises where the mother lives;

   d)Not to be within 20 metres of the premises where the mother works;

   e)Not to be within 20 metres of the mother except for the purposes of attending Court proceedings, or counselling/mediation sessions arranged by consent with the mother or by order of the Court, or through a member of the parties’ immediately family; and

   f)Not to contact the mother, except through a solicitor, or through  counselling/mediation sessions arranged by consent with the mother or by order of the Court, or through a member of the parties’ immediately family.

7. The father tendered Exhibit ‘F7’, which were “GP Mental Health Care Plan[s]” for H and M respectively.  Both plans were dated 18 June 2010.  Both plans appeared to be prepared by Dr C from the T Medical Practice.  H’s plan identified that the “problem/diagnosis” for him was “[s]ignificant stress and anxiety related to father’s illness.  Presistent fear of father harmng himself or taking him away from mum.”[20] M’s plan contained a “problem/diagnosis” of “significant stress following fathers illness and subsequent separation of parents.  Has thoughts of not ‘ being able to trust dad’ , and worries about his behaviour during visits.  Has found counselling helpful and has good support at home from mum and extended family”.[21]

   [20] Copied without correction from original Exhibit.

   [21] Copied without correction from original Exhibit.

8. Counsel for the mother identified that the children had expressed a negative view about their father’s accommodation having to sleep on a couch in his premises when the children and the paternal grandparents stay on alternate weeks.  Counsel for the mother submitted that M had sought to assist her father by searching a popular internet website “Allhomes” to find alternative accommodation.

1. Counsel for the mother submitted that the father had recently purchased a new bike for M, but not for H, and that the father had suggested that H might like to run alongside M on the bike while she rode it.  After some time, the father purchased a bike from the local “tip”.

2. Counsel for the mother submitted that the children had reported the father had engaged in “age inappropriate” behaviour, including bouncing the children up and down on a bed “as if they were toddlers”.  The mother confirmed in her cross-examination that H had specifically used the term “age inappropriate” in describing his father’s behaviour.  In this regard, the mother acknowledged H’s “sophisticated” expression.

3. Counsel for the mother submitted that H had been exhibiting highly “obsessive compulsive toileting behaviour”, whereby after spending time at his father’s house, he would constantly go to the toilet “every two minutes.”  Counsel for the mother submitted that when the mother had approached H about this issue, H had expressed concern about his father want to “kill himself” and was keen to know what his father had been like as a child.  H and M had reported and explored these issues with Ms R.

4. Counsel for the mother submitted that the mother and the children had by happenstance crossed paths in a doctor’s surgery.  Consequently, the children had suffered a “breakdown” as they feared that their father had come to abduct them.

5. The father acknowledged that H had frequently sought to go to the toilet when out in public and the father had noticed this behaviour when he was in the father’s house.  The father initially stated this occurred at around the time of the April 2010 school holidays, but later agreed with counsel for the mother that this had occurred during the January 2010 school holidays, or “possibly earlier”.  The father stated that H did not provide any explanation for his behaviour.  The father considered that the issue had resolved itself.  The father stated that he and the mother did not communicate with each other about this issue. 

6. The father gave evidence that apart from the discrete issue of H’s frequent toileting, there was no other issue in relation to H that he was concerned about.  The father gave evidence that he did not have any issues of concern in relation to M.  The father stated that he and the mother have not communicated with each other about any issues affecting M. 

7. The father gave evidence that he had not been hospitalised in the last 12 months.

8. The father gave evidence that the purchase of M’s new bike was facilitated by her savings of pocket money (given to her by the father), and that H had made a conscious decision to spend his pocket money on “Lord of the Rings” figurines, rather than a new bike.

9. The father gave evidence that he was affectionate with the children and gave them hugs and that this may have led to the “bouncing bed” incidents. 

10. The father maintained that M had, of her own volition, searched “Allhomes” so that she could find a house nearby one of her school friend’s house.  The father also stated that he had indicated to H that he would rent larger premises in the longer term.  The father did not have an intention of renting larger premises in the short term. The father denied promising the children that he would purchase a dog, except if he did obtain larger premises in the longer term.  The father also denied promising the children that he would obtain larger premises.  The father did not recall whether M had sought to assist him in identifying the location of banks and a real estate agent for the purposes of paying rent on a larger property in W, ACT.

11. The father explained that he had been at the T Medical Practice at the same time as the mother and the children obtaining his Risperdel injections.  The father stated that he considered that the children were confused and uncertain as to how to approach him because of the present.  This, he explained, was compounded by the restraining undertaking in place.  The father also stated that M had later reported to him that she had asked her mother on that occasion whether she could hug him.  The mother replied that she could not.

12. The parties communicate principally through the mother’s father.  The father denied that he did not respond to this communication, but acknowledged that there were sometimes delays in his responding. 

13. The father denied spending more money on M than H on top of the pocket money each child receives.  The father conceded that he does purchase mobile phone credit for M, but not for H.  The father also denied spending more time, or gives more attention to M at the expense of H.  The father denied that H complained about more money being spent on M.  The father stated that H may have perceived that there were some occasions were the father spent more time with M.  The father stated that he reminded H that this was not the case.

14. The father stated that M would instigate phone calls to the mother and that he did not put any restrictions on this communication.  He denied, however, that M did this frequently. 

15. The father denied that either of the children had ever approached him with a concern that he might commit suicide.

16. The mother maintained that H had expressed dissatisfaction with not having a new bike like his sister, but had come up with the idea of raising the idea of purchasing a second hand bike instead and spending money on “Lord of the Rings” figurines.  The mother also reported that M was uncomfortable with having a new bike when her brother did not.  The mother gave evidence that H was hurt by the inferior quality of this bike compared with M’s.

17. The mother gave evidence that the father had purchased a mobile phone for M with credit for that phone, and that the father had promised to give H an older one (which did not have a SIM card).

18. The mother gave evidence that H frequently “feels let down” by the favouritism that the father displays towards M.  The mother also gave evidence that both children, but particularly H, are dissatisfied with the phrase “a year’s time”, which is frequently used by the father to explain to H when things might happen, such as moving into larger premises or when the father might obtain a dog.  The mother stated that she has tried to raise this issue, through her father communicating with the father, to no avail.

19. The mother reported that M has, from time to time, raised the issue of the inadequate size of the father’s present premises.  The mother stated that M had searched “Allhomes” and had found a larger rental property in W, ACT (which was coincidentally near the house of a school friend).  M had explained to the father that there was a bank at the shops nearby the rental property which would enable him to take money out to pay for the rent.  The mother stated that M had asked the father to look and give consideration to the property – the father replied that he would.  The mother stated that M had considered this a promise by her father to “take the house”.  The father and M then had a couple of conversations during the week whereby he had not looked at the property, but promised to do so.  The father then indicated that he did not intend to take the house.  The mother reported that M was very upset that the father had not taken the house, particularly when she had made such efforts on his behalf.

20. The mother gave evidence that H had called her within the last fortnight while staying with his father.  H had reported that “his father was being weird” and that he “was bored and had nothing to do”.  The mother and H had then had a conversation whereby the mother suggested that H write a list of activities for him to do with his father.  The mother made a similar suggestion to M.

21. The mother reported that M would frequently call her over the course of the alternate weekend when they spend time with their father. This was M’s initiative.

22. The mother gave evidence that at the start of 2010 for a period of nearly three months, H exhibited obsessive compulsive toileting behaviour and reporting that he felt worried and anxious (but not indicating why he felt worried and anxious). After attempting to seek assistance to no avail with Ms R, on 19 March 2010, the mother spent time with H at a Lake to try to get to the root of the problem.  The mother then gave the following evidence about that event:[22]

    [THE MOTHER]: …he then told me, much to my shock, that…sorry…

    HIS HONOUR: Take your time.

    [THE MOTHER]: He had been worried about how his father would kill himself because he had seen his father’s behaviour change on weekends leading up to Christmas and when he was in Sydney and that he would see his father’s moods “swing” as he described it where he would be quite light and low and then it would peak or be hyper and then his behaviour would be, what they call, [H] said “age inappropriate” – he used those words – where he would play these baby games and this worried [H] about whether the mental illness was coming back.  He asked me – he said to me he had worried about – he wanted to know whether his father tried to kill himself, how many times and how he had done it.  He’d been carrying this issue around in his head for those three months from the beginning of the year and he said he was worried about asking me those questions because it might distress me.  The reason why [H] wanted to know – had this in his head was that he’d seen this behaviour change in his father and he felt that he was going to – [H] was going to have to make a decision at some point as to when he and [M] – he needed to take action and take [M] and get out of the flat to make sure his father didn’t hurt him and [M].  He went on to say things such as he felt his father wasn’t a real father.  He wanted his father to be a real father, a real dad who would make decisions and take care of them. So [H] was going through this kind of disturbing time about how he would manage his father’s behaviour and how he would protect him and [M] and when to make that decision.  So he asked me, for instance, what triggers should he look for that would indicate when his father was about to do something dangerous to him and [M].  He said to me that he had been at [N] and seen ads on the television for child – Kid’s Helpline – Lifeline – and should he ring that number and when should he ring that number.  So, for me, from my point of view I - we walked through options about – I have a mobile phone that the kids use for an emergency – for school – if they miss the bus – you know, he could ring me, or he could ring his grandparents or he could ring his aunt.  And we talked through those sorts of immediate tactics. 

    [22] Audio record of proceedings, 6 July 2010, 11:40:48 to 11:43:14.

23. The mother gave evidence that about a week after this conversation, H’s toileting problems ceased and resolved.  The mother acknowledged that she was not a medical practitioner and had not taken H to a general practitioner in relation to this issue.  The mother stated that she would likely undertake the same course of action if H exhibited behaviour which was likely caused by anxiety, rather than, for example, a urinary tract infection.

24. The mother stated that she was concerned that the children were more aware of the “risk they were in” in relation to their father, particularly because of his “weird” behaviour, such as when the mother and the children had crossed paths at the T Medical Practice.  The mother denied suggesting to the children that they would be abducted by the father.   

25. The mother reported that both children feel safer with their paternal grandparents being present during the time they spend with their father.

26. The mother stated that the children had some understanding of the father’s mental illness, and that they had expressed to her that they were afraid that the mental illness would return and that the father would hurt them.

27. The mother stated that the children feel embarrassed and uncomfortable when their father engages in age inappropriate behaviour or in games which might be more suitably played with a toddler.

28. The mother stated that whenever the children present a concern about their father, such as when M reported on one occasion that her father might go “berko” because she perceived that his mental illness was about to return, she encouraged the children to address this concern with Ms R.  The mother did not acknowledge the gravamen of counsel for the father’s question as to whether she tries to dissuade the children that their father may hurt them or himself.  The mother stated that she wished to ensure that the children’s feelings felt validated and that they should discuss them with Ms R.  The mother stated that she cannot assess the father’s mental state or whether or not the father’s mental illness is being managed well.

Relevant Law

1. I turn to Part VII of the Family Law Act 1975 (Cth) which is the “legislative pathway” for determining what parenting orders can be made by the Court, consistent with the overarching paramount consideration of the best interests of the child.[23]

   [23] Family Law Act 1975 (Cth) s 60CA.

2. The question of equal shared parental responsibility is a vexed one.  The making an order for equal shared parental responsibility requires a mandatory statutory assessment as to whether it might be in the best interests of the children, as well as reasonably practicable, to spend equal time, or substantial and significant time, with both of their parents.[24]  The father sought an order for equal shared parental responsibility.  The mother sought, effectively, for the orders in relation to joint parental responsibility be maintained as qualified by my orders of 18 March 2009.  It was acknowledged by counsel for the father on 6 July 2010 that the mother effectively exercises sole parental responsibility as the parties do not communicate (and have not since 2007).    

   [24] Family Law Act 1975 (Cth) s 65DAA(1) & (2) refers. See also MRR v GR [2010] HCA 4, [13].

3. In Marvel & Marvel (No. 2)[25] the Full Court of the Family Court (Faulks DCJ, Boland & Stevenson JJ) acknowledged the circumstances in which it might be inappropriate to make an order for equal shared parental responsibility.  The Full Court stated (at [103]):

   It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances.  This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children.  In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.

   [25] Marvel & Marvel (No. 2) [2010] FamCAFC 101.

4. In making a parenting order, the Court must apply a presumption that is in the best interests of children for their parents to equally share parental responsibility.[26]  The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[27]  

   [26] Family Law Act 1975 (Cth) s 61DA(1).

   [27] Family Law Act 1975 (Cth) s 61DA(4).

5. In accordance with s 61DA(4), I propose not to make an order for equal shared parental responsibility.  I find the presumption is rebutted.  This is because of my assessment of the evidence and for the reasons I will outline in my Judgment.  As I have found that the presumption is rebutted, it is unnecessary for me to make findings as to whether or not an equal time arrangement, or a substantial and significant time arrangement, is in the children’s best interests or reasonably practicable in the circumstances of this case.

The best interests of the child: primary and additional considerations

1. In Aldridge & Keaton,[28] the Full Court of the Family Court (Bryant CJ, Boland & Crisford JJ) held that the Family Law Act 1975 (Cth) does not (at 83,825):

   …direct any particular weighting or priority to any provision in [Part VII] (although we note the division of the s 60CC factors into primary considerations and additional considerations. It is clear however from the [Explanatory Memorandum] that while the use of the word “primary” is intended to stress the importance of the consideration in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary considerations.

   [28] Aldridge & Keaton (2009) FLC ¶93-421.

2. In Marvel & Marvel(No. 2), the Full Court of the Family Court took the approach of considering the s 60CC(3) (additional considerations) prior to considering the s 60CC(2) (primary considerations).[29]  I propose to adopt the same course in this matter.

The additional considerations: s 60CC(3) of the Family Law Act 1975 (Cth)

[29] Marvel & Marvel (No. 2) [2010] FamCAFC 101, [140]; see also Collu & Rinaldo [2010] FamCAFC 53 (May, O’Ryan & Strickland JJ), [334] – [335].

1. I turn to the additional considerations pursuant to s 60CC(3) of the Family Law Act 1975 (Cth).

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

1. It is not always easy to ascertain what children’s views are.  Particularly when these views are reported by parents, there is a tendency for the reporter to add a flavour to the expression of their wishes by children.  If I were to accept only the evidence of the father then I could comfortably conclude that the children had a good time with him, that they were unconcerned about any unequal treatment between them and would enjoy spending time with him on an unsupervised basis.

2. On the other hand, if I were to accept the various reports from the mother about what the children have said and done, I would have to be concerned that the children were deeply troubled about what might happen if their father were to become ill while they were with him and that this situation would be aggravated if there were no other person present, for example the father’s parents.

3. There are some factors which cause me to accept the mother’s version more readily than the father’s.  There is a maturity demonstrated by some of the views expressed by H for example, which have withstood the cross‑examination of the mother and which lend credence to what she says are his concerns.  One example of this is his use of the words “age inappropriate behaviour”.  This is unquestionably a curious phrase for a child of H’s age to use, but one which the mother marvelled about but nevertheless insisted had been used.  Moreover, in the context in which it occurred and the behaviour that is described (for example, bouncing the children up and down on beds) it somehow all fits.

4. In addition, H’s toileting problems are, (even without any expert evidence about it), indicative of his concerns about the time he spends with his father. 

5. Even more poignant is the reported comment to the children enquiring what would happen if their father were to commit suicide. 

6. It may be, as obviously the father believes, that the mother is at least in part responsible for some of the children’s anxiety.  I have watched her carefully in the witness box and in Court over a long period.  I am impressed by her sincerity and her deeply held concerns.  I am also impressed by the fact that she has not resiled from proposition that the children should spend time with their father at any point but only that they should be safe in doing so.  It would be difficult, if not impossible, for the children not to pick up the non-verbal cues that she might exhibit from time to time. Moreover, in terms of the admitted behaviour of the father in the past (not the least of which was the incident where he was banging on the door), it is not surprising the children are apprehensive.

1. The father’s persistence, his sincerity and his obvious affection and love for his children mean that he is likely to have significant things to contribute to them over the years.  The important part in all of this that he does so in a context where the children are safe from him and the unsought consequences of his illness.

2. In summary, I accept that the children have concerns and that they are concerns which need to be recognised. I accept that their views also include the desirability for them of spending time with their father.  These arrangements, at least in the immediate future, in conformity with the evidence of the experts, suggest that the time they spend with their father should continue to be supervised.  This is a grave imposition on the father and a serious imposition on his parents who have exhibited the most outstanding dedication to their grandchildren and to their son in travelling to frequently provide the opportunity for their grandchildren and their father to be together.  They have not sought in the re-opening of this matter to be relieved of that obligation.  I am entitled in the circumstances to accept that their commitment with continue.

• The nature of the relationship of the child with:

  o   each of the child's parents; and

  o   other persons (including any grandparent or other relative of the child) (s 60CC(3)(b))

1. I have to some extent dealt with this matter indirectly in relation to other matters.  The children’s relationship with their mother is the closest relationship in the group.  They do, however, have a good relationship with their father, subject to their concerns about his illness and his behaviour from time to time and potentially his ‘remoteness’ from them. 

2. It is difficult for me as a Judge to put my finger precisely on what it is about the father’s presentation which leaves me with the feeling that he has a disconnectedness with his children.  He describes his time with the children almost as if it is in the third person (although I immediately indicate that that is not the nature of his evidence at all) and he demonstrates from time to time insensitivity to what might occur, which, in my opinion, borders on dissociation.  As I listened to his evidence about the purchase of the bicycles for the children, I was struck with the fact that he unquestionably was being sincere in what he said and did.  I have no doubt that he, now at least, if not before, genuinely believes that H did not want a new bike because he wanted “Lord of the Rings” figurines instead.  The consequences of buying a new bike for one child and an old bike for the other do not seem to have entered into the balance of sensitivity one would expect from someone who has fought so hard to spend time with his children. 

3. This does not necessarily diminish the value for the children in having time with their father, but it does mean that that value needs to be placed into the context of the security of their mother’s environment and the assistance that they properly receive at present from their grandparents whom I am satisfied they love. 

4. One advantage of a continuing supervised arrangement for the children for the next year or so is that they will continue to see a lot of their grandparents.  This is obviously a source of comfort, strength, affection and love for them. 

• The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (s 60CC(3)(c))

1. Perhaps understandably, the children’s father is more critical of the children’s mother than the reverse.  I do not doubt that he believes that the children’s mother has alienated the children from him.  This is not supported by the evidence objectively as it has appeared before me.  For her part, I am satisfied that the mother has continued to want the children to have a proper relationship with their father consistent with their safety. 

2. These two approaches satisfy the parameters that would be provided by having the children spend regular time with their father but that that time be supervised by his parents or some other agreed person.

• The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

  o   either of his or her parents; or

  o   any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living (s 60CC(3)(d))

1. This is a family which has succeeded in maintaining relationships in some respects in separation not withstanding many impediments to its doing so.  The children should not be deprived of time with their father.  The children need the love and security of their mother.  The wider family, principally through the father’s parents, has rallied to the extent of ensuring that these things can happen.  If I were to accede to the husband’s (natural enough) request that he spend time with the children by himself, that change may alter the fine balance that has been achieved by these parents in relation to these children now, over some time.

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

1. The obvious difficulty associated with a continued regime of time supervised by the grandparents is the fact that they have to travel and to quote an old saw “they are not getting any younger”.  This should not continue indefinitely but does need to continue, in my opinion, for a longer period.  The original suggestion was that H should be the subject of supervision until he turned 13, which would take him to the end of the year 2011.  At that point, M would be nearly 10 and in accordance with Ms R’s assessment, that would seem to be a reasonable time for the supervisory function to conclude. 

2. Maintaining the regime over that period will be difficult.  It would be appropriate and sensible if the mother and father could try to reach agreement about some alternative supervisors. 

3. It is not the case that the father would knowingly hurt the children.  It is not the case that he is in some sinister way attempting to find opportunities to have the children on their own so that he can do something untoward.  What is necessary is to have some responsible adult available to enable the children to feel secure in the sense that if something were to happen as a result of their father’s illness, first they would have a protector and second, they would have someone to turn to for advice and third they would have someone who could facilitate their exit.  I am not certain if such a person exists among the parents’ acquaintances and if he or she does so exist, his or her willingness to participate even if only on an irregular basis to provide some respite for the father’s parents.  Nevertheless, it would be in the interests of the children for the parents to seek such a person or persons. 

• the capacity of:

  o   each of the child's parents; and

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

  to provide for the needs of the child, including emotional and intellectual needs (s 60CC(3)(f))

1. There is a strong capacity on the part of both the parents to contribute to the children.  Each of them have different strengths and each of them, to some extent, has weaknesses.  Their incompatibility as a result of the father’s illness and the period of time they have been separated and their separate approaches to parenting and their different degrees of sensitivity mean that, as I suggested above in my Judgment, equal shared parental responsibility is not appropriate or relevant.  The parties do not have, on my observation, the capacity to work together on these issues.  It would, however, be appropriate for the mother to inform the father of major events in the children’s lives and to keep him informed again about choices she is about to make on behalf of the children. 

• The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant (s 60CC(3)(g))

1. Other than background information that the father is of Maltese heritage, I have no evidence of any particular cultural background that requires attention.  The children’s lifestyles have been dictated to some extent by the unusual arrangements between their parents.  It is a credit to both parents that the children have survived the difficulties and are as it appears from the various reports about them, very pleasant young people.

• The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents (s 60CC(3)(i))

1. I do not think I want to add anything further in relation to this heading other than that which I have already said in a different context or set out in my Judgment below.

• Any family violence involving the child or a member of the child's family (s 60CC(3)(j)); and

• Any family violence order that applies to the child or a member of the child's family, if:

  o   the order is a final order; or

  o   the making of the order was contested by a person (s 60CC(3)(k))

1. The mother obtained a domestic violence order in the past and there are injunctions in place preventing the father from coming near to the mother.  It is to be hoped that in due course these restrictions will be diminished and that there will be enough trust between the parents at least at a ‘business’ level with the children to enable some reasonable contact to occur.  In the meantime, no one can successfully order that someone trusts somebody else.  To the extent that there have been incidents in the past which have reflected upon the ability of the parents to provide in a complete way for the benefit of their children it is appropriate that there should remain at least for the time being some supervisory function in relation to the time the children spend with their father. 

2. The sub-issue relating to violence is the potential that has existed in the past at least that the father may do violence to himself.  The fact that that may occur in the presence of the children is a thought too horrible to contemplate and again this suggests that the arrangements for supervision continue to be appropriate. 

• Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child (s 60CC(3)(l))

1. It would be nice to think that the parents were able to walk away from these proceedings with a sense of commitment to a future and a sense of commitment resolving the differences which inevitably will arise in the future in a negotiated rather than a litigated way.  I cannot predict whether that will occur or not.  I do not believe that the orders I am making will make any difference to the likelihood or otherwise of that occurring. 

• Any other fact or circumstance that the court thinks is relevant (s 60CC(3)(m))

1. There are probably many such facts or circumstances but I believe that in addition to the matters I have set out above the evidence of the parties as I have heard it and as I have recorded it in my Judgment would lead me to conclude that it is in the children’s best interests that I make the orders that I propose to do. 

Fulfilling the responsibilities of parenthood: s 60CC(4) & s 60CC(4A) of the Family Law Act 1975 (Cth)

1. In considering s 60CC(3)(c) and s 60CC(3)(i) above, I am obliged to consider the extent to which each of the parents have fulfilled, or failed to fulfil, their responsibilities as parents. This is outlined in s 60CC(4) and s 60CC(4A); these provisions relevantly provide:

   (4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

   (a)has taken, or failed to take, the opportunity:

   (i)to participate in making decisions about major long‑term issues in relation to the child; and

   (ii)to spend time with the child; and  

   (iii)to communicate with the child; and

   (b)has facilitated, or failed to facilitate, the other parent:

   (i)participating in making decisions about major long‑term issues in relation to the child; and

   (ii)spending time with the child; and

   (iii)communicating with the child; and

   (c)  has fulfilled, or failed to fulfil, the parent's obligation to maintain  the       child.

   (4A)  If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

2. The aforementioned provisions ostensibly are intended to require compulsorily that the Court give consideration to the willingness of the parents to both offer and to accept opportunities to participate in the lives of the children and in making decisions about major long-term issues about them.  It is perhaps implicit in the legislation that to be involved in such activities is necessarily a “good thing”.  Undoubtedly, when parties are together and happy, it would be expected that parents would participate in decisions about major long-term issues, and spend time with their children and communicate with their children.  When parties are separated, this is frequently a hope rather than an expectation. 

3. This appears to have been recognised somewhat in s 60CC(4A) and that would ordinarily be the effect of that section if the words “in particular, to events that have happened, and” were removed.   The circumstances that pertain to parties after separation will mean that, almost of necessity, both parties will not: participate in decision-making to the same extent; spend time with the children to the same extent; and communicate with the children; as they did when they were happily together.  Hence, in having regard to the “circumstances that have existed, since the separation occurred” it would be normal to expect that the parties have done what they could, but that might be quite limited in the “circumstances”. 

4. The inclusion in s 60CC(4A) of the words “…have regard to, in particular to events that have happened…”.  It is obvious that if there were dramatic and violent events that have occurred that this would provide some form of explanation that the parties have not been involved to the same extent as they have been previously, or perhaps, at all.  It may be that events if benign since separation have occurred (whatever “events” may mean), then a failure to attempt to spend time with the children may call for an adverse conclusion.  It can be reasonably be assumed that events must be qualified by the word “relevant”, but Parliament did not choose to include that word.  Interpreting the phrase in a purposive way to overcome a “mischief” that it may have been designed to deal with, rather than literally, would suggest that the Court must “have regard” to the events and circumstances of the parties generally and relevantly since the parties have separated, and in particular, in relation to their fulfilment of their responsibilities as parents. 

5. In this case, the parties have not had a happy time since they separated and I will not again review the difficulties occasioned by the father’s mental illness.  Illness in itself is not a disqualifying factor from the ability to fulfil one’s responsibility as a parent.  In some cases, however, illness whether mental or physical and which are untreated may have an impact on a parent’s ability in this regard.  This is one such case.  Moreover, the father’s illness in this case has had an effect on the ability of the mother to facilitate the involvement of the father in the children’s lives.  There is nothing further to add in relation to this matter. I have taken these matters into consideration in reaching the determinations that I have. 

The primary considerations: s 60CC(2) of the Family Law Act 1975 (Cth)

1. I turn then to the primary considerations. Section 60CC(2) of the Family Law Act 1975 (Cth) relevantly provides:

   The primary considerations are:

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

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

2. As is sometimes the case, consideration of the “additional considerations” provides a basis for saying that the primary considerations are met in a different way.  Sometimes it is impossible to blend the “twin pillars”[30] of the primary considerations in a way that reflects the best interests of the children. 

   [30] As Brown J described them in Mazorski & Albright [2007] FamCA 520, [3].

3. The comments that I have made above suggest that it is important for the children to have a meaningful relationship with each of their parents.  At the same time it is necessary for them to be protected from physical or psychological harm. 

4. This will be reflected, in my opinion, in orders that I propose to make.

5. I propose that until H turns 13, he and his sister will spend time with their father on a supervised basis:

   a)From after-school Friday to 5.00 pm Sunday each alternate weekend;

   b)One half of each of the Australian Capital Territory school holidays as agreed between the parties, or, failing agreement, the second half;

   c)At such other time as agreed by the parents.

6. In each case, the supervision will be undertaken by the father’s parents, unless the parents otherwise agree on an alternative supervisor.  I consider that it is appropriate for the father to spend a full weekend with the children and have deliberately amended the time outlined in the present orders from 2.00 pm on Sunday to 5.00 pm on Sunday.

7. Once H turns 13, I propose that the time that he and M spend with their father be unsupervised.  I consider that both he and M will be more resilient at this age to be able to spend time with their father on this basis.  I also propose to extend the time in which the children spend with their father on the alternate weekend from after school Friday to before school on Monday morning.  

8. I do not propose to accede to the father’s request that the children spend time with him in the alternate week from Friday after school to 8.00 pm.  I consider that the children are entitled to spend a full weekend with their mother. 

9. I make no order as to whether or not the children spend a weekday from after school to say, 6.30pm (as suggested by the mother during the course of her evidence).  The parties may agree to this occurring on a supervised basis until H turns 13 or an unsupervised basis thereafter.       

10. I propose to make orders on a supervised basis until H turns 13, and thereafter on an unsupervised basis, for the children to spend time with their father on his birthday (and on their birthday), and on Christmas Eve, Christmas Day and Boxing Day.  Similarly, I propose that the children will spend time with their father on his birthday and on their birthdays (firstly supervised, then unsupervised when H turns 13).

11. The orders that I make about the children spending time with their father are conditional upon the father’s therapeutic dose of the drugs that he is receiving.  His previous non-compliance was not, in my opinion, in any way malicious.  Nevertheless, this demonstrated that a regular regime which, in effect, subjects him to the supervision of his doctor on a continuing basis is the way most likely to ensure that he gets the medication that he needs.  It is clear from the experts that the father’s future, sadly for him, will involve medication on an indefinite basis. 

1. I consider that it is in the children’s best interests to confirm that the mother is to have sole parental responsibility for the children and that the children will continue to primarily reside with her.

2. It would be appropriate for the father to continue to see his psychiatrist but I am concerned that practically I may not be able to enforce any such order.  Nevertheless, I propose that I direct that the husband continue to attend upon Dr L or any psychiatrist whom he may consult in substitution for Dr L for so long as that person believes it is necessary for him do so.  That is an order for the husband’s good as much as for the children’s best interests.

Conclusion

1. I make orders in accordance with my Judgment.  The matter is removed from the pending cases inventory.

I certify that the preceding one hundred and forty five (145) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate: 

Date:  16 July 2010

Endnote 1

Proposed Short Minutes of Orders filed on behalf of the Applicant Father (filed in Court on 8 July 2010)

NB: This document is reproduced without correction

1.All prior parenting Orders be discharged.

2.The children [H] born […] October 1998 and [M] born […] April 2001 live with the mother.

3.The parties equally share parental responsibility for the children.

4.The father will provide to the mother copies of blood test results confirming that father’s prescription medication is within therapeutic range as follows:

a.Not less than once per fortnight for a period of two months from the date of these Orders;

b.Thereafter, not les than once per month for a period of 12 months.

5.In the event that the father, without medical explanation, fails to undertake a blood test, or such blood test results indicate non therapeutic levels of prescription medication, the following will occur:

a.The father’s unsupervised time with the children pursuant to Order 6 will be suspended and the father’s time with the children will resume under the supervision of the paternal grandparents;

b.Upon the father providing to the mother 3 months of blood test results, such results to be provided fortnightly, the father’s time with the children will resume pursuant to Order 6; and

c.Either party have liberty to re-list this matter before the Court.

6.The children spend time with the father as follows:

a.For a period of 12 months from the making of these Orders, such time to be in the presence of the paternal grandparents:

i.From afterschool Friday to 2pm Sunday in each alternate weekend;

ii.One half of each of the ACT school term holiday periods as agreed between the parties and failing agreement, the second half;

iii.Or at such other times as agreed between the parties.

b.From the conclusion of time in (a) above, until the conclusion of the 2009 school year, such time to be unsupervised:

i.From afterschool Friday to 5pm Sunday in each alternate weekend;

ii.From afterschool Friday to 8pm in the alternate week;

iii.One half of each of the ACT school term holiday period as agreed between the parties and failing agreement, the second half;

iv.For one week during the 2009 Christmas school holiday period as agreed between the parties and failing agreement, from 3pm Christmas Day to 5pm 1 January 2010;

v.Or at such other times as agreed between the parties.

c.At the commencement of the 2010 school year as follows:

i.From afterschool Friday to before school Monday in each alternate weekend;

ii.From afterschool Friday to 8pm in the alternate week;

iii.One half of each of the ACT school term holiday period as agreed between the parties and failing agreement, the second half;

iv.Or at such other times as agreed between the parties.

7.The father will spend additional time with the children as follows:

a.For Christmas as follows:

i.With the father from 3pm Christmas day to 2pm Boxing Day in 2010 and each alternate year thereafter;

ii.With the father from 5pm Christmas Eve to 2pm Christmas Day in 2011 and each alternate year thereafter;

b.On Father’s Day as follows:

i.With the father each Father’s Day from 9.00am and 5.00pm;

c.On the father’s birthdays as follows:

i.If falling on a school day, from immediately after school until 8.00pm that day, and if falling on a non school day, from 9.00am to 5.00pm that day.

d.On the children’s birthdays as follows:

i.With both children on each of the children’s birthdays with the father from after school to 8.00pm if falling on a school day, and if falling on a non school day from 9.00am until 1.00pm that day.

e.Or at such other times as agreed between the parties.

8.The father will communicate with the children whilst the children live with the mother as follows :

i.By telephone each day at 7pm with the children to telephone the father, or that the children do no telephone the father, then the father may telephone the children at 7pm in lieu;

ii.In the event that the father cannot make contact with the children at 7pm, then he may telephone them the following morning at 7.15am;

iii.All such telephone calls, unless otherwise agreed between the parties, will not exceed 15 minutes.

iv.Or at such other times as agreed between the parties.

9.The mother will facilitate the children telephoning their father in accordance with Order 8, and at any other time as requested by the children.

10.For the purposes of changeover of the children, that each parent shall collect and return the children on school days to and from the children’s respective schools and if falling on non school days, the father will collect the children at the commencement of time from the mother’s residential premises and the mother will collect the children at the conclusion of the father’s time from the father’s residential premises or as otherwise agreed between the parties.

11.Each parent will provide an authority to each of the children’s respective schools authorising the release of information to the other parent including but not limited to school reports, school photograph order forms, invitations and flyers for school events and that each parent is at liberty to attend events involving the children at school.

12.Each parent will provide an authority to each of the children’s treating medical practitioners authorising the release of information to the other parent regarding the children’s medical treatment.

13.Each parent will contact the other forthwith in the event of the following involving the children:

a.A medical emergency;

b.The children’s non attendance at school’

c.Illness or injury of the children.

14.Each parent will take the children to extra curricular activities falling during the time that the children are in either party’s care, with extra curricular activities to include schooling, sporting or social activities that the children would ordinarily attend or have been invited to attend.

15.The parties will exchange a communications book at changeover of the children, such communication book to address issues regarding the care, welfare and development of the children and matters relevant for the forthcoming period of time with either party.

16.

Endnote 2

Minute of orders sought by respondent mother (submitted by email on 25 August 2009 upon the solicitors for the respondent wife realising that counsel had failed to hand the document up in Court on 7 or 8 July 2009).

NB: This document is reproduced without correction

THAT UNTIL FURTHER ORDER:

The previous orders are confirmed, save and except:

1.Upon [M] obtaining the age of thirteen (13) years and on the following other conditions:

a.That the father be injected with a therapeutic dose of such drugs as prescribed by his treating psychiatrist; and

b.The medical practitioner administering the injection to provide to the mother a certificate after each injection confirming the above; and

c.The father to continue therapy with Dr [L] as frequently as Dr [L] recommends; and

d.Once a month Dr [L] to provide a certificate to the mother that the father’s condition is stable or improving and does not present any risk to the children.

e.That [Ms R], the children’s psychologist, is furnished with copies of all relevant blood tests and psychological reports from the treating psychiatrist each month.

2.The following Orders are on a supervised basis except where compliance with order 1 above has occurred:

a.The father is to spend one half of each of the ACT School term holiday period as agreed between the parties and failing that agreement, the second half with the children;

b.The father is to spend one week during the 2009 Christmas school holiday period as agreed between the parties;

c.The father is to spend such other times as agreed between the parties;

d.The father is to spend time with the children on Father’s day as follows:

i.From 9.00am to 5.00pm;

e.The father is to spend time with the children on his birthday as follows:

i.if falling on a school day from immediately after school until 8.00pm that day;

ii.If falling a non-school day from 9.00am to 5.00pm that day;

f.The father is to spend time with the children on their birthdays as agreed between the parties.