MDA and MMA

[2006] FCWA 7

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT : FAMILY LAW ACT 1975

LOCATION : PERTH

CITATION : MDA and MMA [2006] FCWA 7

CORAM : MARTIN J

HEARD : 14, 15, 16 & 30 SEPTEMBER 2005

DELIVERED : 12 JANUARY 2006

FILE NO/S : PT 6788 of 1997

BETWEEN : MDA Applicant/Father

AND MMA

Respondent/Mother

Catchwords:

Child - residence - wishes of child - mother psychiatric illness - mother in Perth - father in

Eastern States

Legislation:

Family Law Act 1975 - s 65E and s 68F

Category: Not Reportable

Representation:

Counsel:

Applicant : Mr Hooper

Respondent : Mr Bannerman

Solicitors:

Applicant : Shann Family Lawyers

Respondent : Bannerman Solicitors

Case(s) referred to in judgment(s):

H and W (1995) FLC 92-598

R and R (2000) FLC 93-000

1The issue for determination was the father's application, first filed October 2004, to which the mother filed a response January 2005. The issue was whether the child of the parties, [K] a boy aged now aged 12 years, should reside with his father, and the father's present partner [EA], in the Eastern States, and have mainly holiday contact with his mother, or primarily reside with the mother in Perth, having holiday contact with the father.

2At trial, the father proposed the following orders, in addition to residence in his favour:-

2.	[K] have unlimited phone contact with the respondent and grandparents.
3.	While the father resides in Eastern States and the mother resides in Perth, [K] shall spend at least half of all Eastern States school
holidays in Perth and then have contact with the mother.
4.	Whilst in Perth for contact visits, the respondent shall facilitate [K]
having at least one overnight visit to his paternal grandparents.
5.	The father will pay the costs of [K]'s travel between Perth and the Eastern States for the purpose of contact pursuant to these orders.
6.	Should the parties reside in the same city, the mother have contact one night per week after school until 7:00 pm, and alternate
weekends from after school on Friday until 5:00 pm on Sunday.
7.	[K] shall spend alternate Christmases with each party with arrangements to be made by agreement.
3	The mot	her proposed, in addition to residence in her favour, that:-
1.	The parties have the joint long-term care, welfare and responsibility of the said child.
2.	The father have contact with the child:-

•for 10 days in the first and third school holidays and for half of the July school holidays;

•the father have contact with the child for half of the Christmas school holidays commencing the second half in 2005/2006, and each alternate year thereafter after the first half of the Christmas school holidays 2006/2007, and each alternate year thereafter;

•the father have contact with the child by email, webcam and telephone at all reasonable times.

3.The mother authorise any treating medical practitioner of hers to discuss with the father her ongoing state of mental health when reasonably requested by him to do so.

4.The mother shall notify the father of the names of her treating mental health professionals at all times.

5.The mother keep the father advised at all times of [K]'s residential address and contact telephone numbers.

(Page 4 )

6.The mother authorise any educational establishment at which the child attends to provide to the father any and all information he may reasonably request at his sole expense.

Background

4The father is 42 years of age and works part-time in a finance company. The mother is 36 years of age and engaged in home duties. The parties married in November 1992. Their child, [KJA] , was born in June 1993. The parties separated in January 1996, when [K] was only 2½ years old, and were divorced in March 1998.

5After separation, the child resided with the mother and the father, generally, had alternate weekend contact, as well as other contact as agreed between the parties from time to time. From late 1998, the father lived for some time in the South West working, for a wine company. Although orders were made in relation to settlement of property in 1998, no parenting orders were made until 2001, as formal orders had not been considered essential by the parties.

6In March 2001, the father commenced a relationship with his present partner, [EA]. [EA] is head marketing manager of a large company situated at the head office. The couple have lived together in a de facto relationship for four years. They became engaged in February 2004, and planned to marry in September 2005. However, their evidence is that the wedding has been postponed to at least September 2006, because of the financial demands of the proceedings.

7There was really no evidence as to the mother's relationships, although her medical notes refer to her having had several relationships.

8The mother started acting strangely in mid 2001, for example, saying that sailors and neighbours were "after" her. The mother was hospitalised in the psychiatric ward in June 2001. The child stayed with his maternal grandmother, and then the father, for the two weeks while the mother was in hospital.

9The father filed an application on 5 July 2001, seeking that [K] reside with him until such time as the Court was satisfied the mother had the mental, emotional and physical capacity to properly care for him. The father was satisfied by the mother's medical reports and on 4 September 2001, it was ordered, by consent:-

1.The child of the marriage reside with the respondent and she have responsibility for the child's short term care, welfare and development at all time save and except when the child has contact with the applicant.

2.The child have contact with the applicant defined to include the following:-

(a) each alternate weekend from after school Friday until 4:30 pm Sunday;

(b) one half of all gazetted school holidays;

(Page 5 )

(c) commencing in the year 2001 and each alternate year thereafter, from 5:00 pm on Christmas Eve until 2:00 pm Christmas Day;

(d) commencing in the year 2002 and each alternate year thereafter from 2:00 pm on Christmas Day until 2:00 pm on Boxing Day;

(e) such further contact as may be agreed between the parties from time to time with such additional contact not being unreasonably refused by the respondent.

3.Both parties shall retain responsibility for the child's long term care, welfare and development.

4.The proceedings otherwise be adjourned sine die with each party having liberty to relist at short notice.

10 On 1 August 2003, the father relocated to Eastern States, with [EA]. The father's evidence is that he and [EA] initially intended, when moving to Eastern States, to stay for one to two years to develop their business. They had been unable to establish this in Western Australia as they could not obtain the relevant liquor licence to conduct the business, which was a mail order wine service. Once the business was viable and operating at a profit, they planned to relocate back to Perth to live while operating the business remotely in Eastern States, with the father flying to Eastern States regularly.

11 [EA] soon commenced employment, working for a marketing firm at a salary of

$80,000 as their business was not making a profit.

12 The mother's mental health deteriorated by 20 August 2003. On 15 August

2003, the father's evidence was she had telephoned him and called him "evil, evil, evil

and a c……". She was again admitted to hospital, being discharged nine days later. The child was cared for by the maternal grandmother. The evidence was that the father came to Perth on 29 August, and had contact with the child. He was not informed about her admission, the mother says, because of what he had done in 2001. He did not find out about the mother's hospital admission until documents were subpoenaed. The mother was placed on a community treatment order which concluded in November 2003.

13 Between August 2003 and July 2004, the father had nine contact visits with the child. He also had regular telephone contact, providing the child with a mobile telephone, and speaking to him at least three times per week. [K] would also regularly spend alternate weekends at his paternal grandmother and step- grandmother's home.

14 The child and his cousin had contact with the father in Eastern States in October

2003, and [K] travelled to Eastern States for contact with his father for 10 days in

January 2004 and April 2004. The father, with [EA], had contact with the child in

Perth in June 2004.

15 Shortly afterwards, during a telephone call to arrange holiday contact, the mother informed the father that she was not coping and needed to get away. On 8 July

2004, the child telephoned the father's parents in Perth and told the grandmother that the mother had said that she was dying of cancer. While this is disputed, the paternal grandmother, Mrs A, who was a very credible witness, was very firm on this point and I accept her evidence in this regard. Obviously, the child was not necessarily reporting what the mother had said. The respondent told the father she had been diagnosed with cancer, but was waiting for the test result. On that date, she requested that the father look after the child for two weeks.

16 The mother had difficulty getting the child to the airport, but he was eventually taken by the applicant's father. The child arrived in Eastern States in July 2004.

17 Later in July 2004, the mother advised the father that the child should remain living with him in Perth for the next school semester. She had been diagnosed with inoperable ovarian cancer and did not have long to live. She referred to selling her house and having a garage sale to organise. She sold some of her household goods. The next day she told him she had an inoperable cancer and the child should live with him indefinitely. Although she had in the past, had some investigations, and an abnormal pap smear, there was no doubt she had not been diagnosed with cancer at that time.

18 Following on in July 2004, the mother was admitted to the psychiatric ward of the hospital and the father was informed the next day. The mother informed the father she was in hospital preparing for chemotherapy and when challenged, as she was in the psychiatric ward, said she was in that ward as she had "been admitted for stress". The mother was discharged at the end of August 2004.

19 At the end of July 2004 the father enrolled the child at the local Primary School, and he commenced school there.

20 The child had telephone contact with his mother in hospital in which the mother said some very inappropriate things. The child was crying and hysterical. Thereafter, the father supervised the calls until December 2004.

21 The father and [K] visited Perth on the weekend of 3 to 5 September 2004, so the child could see his mother and spend time with his grandfather on Father's Day.

22 That weekend, the mother did not see the child, of her own volition, until 5:00 pm on Saturday, 4 September 2004, when she arrived unannounced at the applicant's parents' residence. While she was invited in, after a discussion in which she was informed [K] would be staying in Eastern States "until the whole matter is resolved", the respondent le ft the home with [K], telling him to "run for it". The mother hit the father, with car keys, in his back, causing injury. The father, and his brother- in- law, eventually picked [K] up and took him into the house. The mother said the father had put the child in a headlock, but this was denied. It took two of them as he is bigger than they are. The child was upset and confused. The respondent was abusive to the applicant's father, and claims the applicant's father and the applicant were abusive to her.

23 The Rapid Response Police Unit later attended the scene, at the mother's request, and spoke to [K], who said he was okay and the evidence is that he was fine for the

rest of the weekend. The next day, both parties unsuccessfully attempted to lay assault charges against the other. The mother did not see the child again that weekend. While the mother's actions were understandable, it is clear that the child should not have been encouraged by her to leave the home when she was not well enough to care for him.

24 In early September 2004, the father commenced the present proceedings.

25 [EA] commenced employment with her current employer in October 2004, on a salary now of $135,000. Their business had not made a profit. The father had commenced part-time employment in June 2004. Their business ceased trading in about June 2005.

26 The mother was to have Christmas evening contact in December 2004, but by mid November had not provided up to date medical evidence as to her condition. The father had then been proposing only supervised contact. The mother did not attend a counselling conference in November, and so the father booked to go overseas for a few days to spend time with [EA]'s family. The father's evidence is he sought proposals for Christmas from the mother, which were not forthcoming and it was directly as a result of the mother failing to attend counselling that he made the booking. However, the mother's position is that the father was well aware of her desire to see the child. The mother withdrew her consent to a passport for the child issuing.

27 On 17 December 2004, it was ordered that the father have leave to remove the child from the Commonwealth of Australia to go on holiday overseas between 23

December 2004 and 3 January 2005, and that a passport be issued notwithstanding the

absence of the mother's consent.

28 It was not until 23 December 2004, that the mother filed a response to the application for interim orders.

29 The child flew to Perth on 12 January 2005, for 17 days, for holiday contact.

30 On 25 January 2005, it was ordered, until further order, that the child reside with the father, with the mother to have contact for the April school holidays, and with the father to pay the costs of transport for the purposes of such contact. The mother was also to have liberal telephone and electronic communication contact. A family report was to be prepared.

31 The mother said the child was upset about leaving, but the father said the child contacted him and asked for more personal items to be taken to Eastern States.

32 The mother raised with the father the possibility of her moving to Eastern States.

On 7 February 2005, she telephoned the father and sought to see the child daily should she move to Eastern States. There was some correspondence between solicitors. The

issue was not pursued and was obviously impracticable, although the mother said she could have stayed with friends of her housemate, and transferred her community treatment order.

33 The child came to Perth to spend school holidays with his mother in April 2005.

He had telephone contact with his father every second day. During this time, the

interviews for the family report were conducted. The report was published on 16 May

2005. The Family and Child Counsellor, in her summary and conclusions, said:-

"[K] presented as a very likeable yet emotionally distressed child. He was emotional for the greater part of the interview process. From observation, it was obvious that the mother and [K] share a positive relationship and that [K] wishes to reside with her. It was unfortunate that the father was not available in person to ascertain, in the course of observation, his relationship with [K].

The reasons for [K]'s present distress may be due to him feeling guilty about not residing with his mother. He may consider that he has abandoned and failed his mother in not being available to care for her. The mother also believes that she has caused emotional harm to [K] due to his having to reside in Eastern States. It appeared that [K] may be required, when residing with his mother, to take care of and nurture his mother. The increased burden of having to play the part of a responsible parent may have also led to his overeating. A proposition is that [K] eats excessively as a means of self- nurturance.

The mother's mental condition (diagnosed Schizophrenia) and the problems associated with it appear to have been the major reason for [K]'s relocating to reside with his father in Eastern States. In Eastern States [K], to his credit, has readily adapted to a new school and a change in environment. This has not however stopped him missing his mother nor has it lessened his love for his mother. Little has been discussed with [K] regarding the reasons for him leaving his mother to reside with his father. This lack of information has confused and exacerbated been (sic) discussed with [K] regarding the reasons for his leaving his mother to reside with his father. This lack of information has confused and exacerbated [K]'s problems. [K] agreed that he would benefit from having a professional person with whom he could discuss his difficulties.

[K] did not describe a positive relationship with his father nor his father's fiance. Adversely his father believes that he and his fiance share a positive relationship with [K]. The father presented as a concerned parent who wants what is best for [K]'s emotional, social and physical development. He indicated a willingness to address and resolve the issue of his lack of overt affection towards [K].

In relation to residence and contact. [K] stated a wish to reside with his mother. If his mother is incapable of caring for him then he would choose to reside with his maternal grandparents. The difficulties associated with his residing with his mother are the mother's overt hostility toward the father, and the behaviours caused by her Schizophrenia. In addition, is the length of time that [K] has resided with his father and another upheaval were he to relocate to Perth.

The mother's proposition is that [K] feels resentment toward his father and would not want contact with him were he ([K]) to reside with her in Perth.

(Page 9 )

It did not appear that the mother perceived the father as having a role to play in [K]'s future. This lack of recognition of the father may cause future contact problems were [K] to reside with his mother. The father wishes [K] to remain residing with him in Eastern States and is willing to discuss ongoing contact with the mother."

34 [K] came to Perth for his birthday in June for a long weekend.

35 On 27 June 2005, the mother telephoned the applicant, saying that the child had begged her to call the father to beg to be allowed to return to Perth and raising many other issues. The father asked [K] about this. He denied that he had asked the mother to call the father and say that he wanted to move back to Perth.

36 [K] spent a week of the July school holidays with his mother and another long weekend in August. He was to spend 24 to 31 September with his mother and came to Perth for another long weekend in November 2005. Generally, throughout the visits, the respondent's mother and/or the mother's friend and housemate [MC], have been present.

37 Yesterday, I received a letter dated 9 January 2006, from the mother's solicitor, informing me that he had been advised by the respondent's mother that the respondent had recently become a patient at the hospital again.

Proposals for the care of the child

38 The father proposed, for the time being, to continue to live in Eastern States. He works on a part-time basis, commencing at 8:00 am and finishing about 12:00 noon. He is therefore at home when the child gets home from school. While their original plan had been to return to Perth soon, he and [EA] would like to live in Eastern States, at least for about the next 20 months, however, "Whether or when we return to Perth in the next six years will depend largely on how [K] progresses at high school". Although the father still retains a home in Perth, I consider it likely he and [EA] will continue to reside in Eastern States for at least the medium, and possibly, the long term. The father proposes that [K] will commence at the local high school in February

2006, and his future plans will be strongly influenced by his and [EA]'s desire to give the child the best education opportunities available.

39 The father proposes that the child will continue to live in their three bedroom home in the suburbs, so the child can have his own room and be close enough to ride his bicycle to school, which he does daily. Previously, the father and [EA] had lived in a two bedroom apartment in the CBD, but moved for the child's sake.

40 The father's proposals involve the child having unlimited telephone contact with his mother and grandparents. While the parties live in separate States, he proposes that the child spend about ten days of Eastern States school holidays with the mother and four weeks at Christmas and have one visit per term in between the school holidays. He would spend his birthday in June in Perth with his mother and both sets of grandparents. The father will meet all travel costs. The child should also spend alternate Christmases with each parent.

(Page 10)

41 In March 2006, the Eastern States school holidays are early because of the Commonwealth Games, so contact would have to occur outside Western Australian school holidays on that occasion.

42 If the parties are living in the same city, the mother should have contact on alternate weekends from Friday to Sunday and one day in the intervening fortnight.

43 The mother proposed that the child will return to live with her, and attend the one of two local high schools and where there is a good mechanics and robotics course.

44 At the time of trial, the mother was working three part-time jobs - a school cleaner, in the early mornings, a tea and coffee house waitress, and some casual work in catering.

45 If the child was living with her, she intended to seek employment in a call centre during school hours, which could be arranged through a friend of her housemate

46 Since November 2004, the mother has shared the five bedroom home which she owns, with [MC], whom she met when in Fremantle Hospital. [MC] is a café manager, aged 31 years, and has children of his own whom he has regular contact with at the mother's home. He was hospitalised because he suffered a breakdown when rejected by his family as a result of his homosexuality. I was informed he has been diagnosed with prostate cancer, and has been undergoing treatment. No doubt this has, unfortunately, added to the stress in the household. Of considerable concern, is that the mother did not tell the father about [MC], although the father knew about him to some extent.

47 In the event [K] returns to live with her, [MC] will move out, because the mother is concerned that he father would not be happy with the child living with a homosexual.

48 Her mother lives close by and sees her frequently.

49 The mother initially proposed that the child return to Perth immediately, but by the conclusion of the trial accepted it could be at the end of the year.

50 She proposed the father have holiday contact as previously referred to, and that she would keep him informed about her state of health.

Relevant factors

51 The object of Part VII of the Family Law Act 1975, relating to children and the principles underlying it are set out in s 60B of the Act.

“(1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(Page 11)

(2) The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests:-

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and

(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children.”

52 Pursuant to s 65E of the Family Law Act 1975, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interests, the Court must consider the matters set out in s 68F(2) of the Act.

53 As to the wishes of the child, and the weight to be given to the wishes, The Family and Child Counsellor interviewed [K] in April 2005, and prepared the family report. At that time, the child clearly expressed wishes to reside with his mother due to his close relationship with her and his maternal and paternal grandparents. If his mother was not well enough to care for him, then he would like to reside with his maternal grandparents. If he was to remain residing with his father, he would like to have contact with his mother on each of the school holidays. He would also like to be able to telephone his mother three or four times a week and to communicate with her by electronic email.

54 The father's position in relation to the child's wishes is that he accepts that, if asked, the child is likely to say that he wishes to return to live with his mother.

55 [EA] said it is more he thinks he ought to return to his mother. The child sometimes gets upset when he speaks to his mother on the telephone, which could be related to what is being said to him.

56 [K] does miss his mother and is concerned about her as he does not want her to be unhappy. However, the child's behaviour indicates that, in reality, he is happy and settled in Eastern States and he plans activities on the basis he is continuing to reside with the father, for example, he obviously likes his school and has expressed excitement about his new school. He has settled in very well in Eastern States, being involved in basketball and a paper round. He has made friends readily, and in October

2005, was to be involved in the school play. To his great credit, he was accepted into the Australian Youth Choir, but it was decided not to proceed with this.

57 As pointed out by counsel for the father, pursuant to H and W (1995) FLC 92-

598, and R and R (2000) FLC 93-000, it is necessary to provide reasons if the Court

does not intend to accede to the wishes of a child of this age. The expressed wishes of the child are only one of the issues to be taken into account. Of relevance is that the report was prepared in Perth when the child had been staying with his mother. The issue of his wishes was discussed by the child with [MC] on the day before the report was prepared. The grandmother's evidence was that the child had written a note prior to seeing the counsellor, setting out what he wanted to say and had said "when I ask my Dad I want to come live with Mum he says you can't because Mum is unwell and she is not". This indicates the undisputed fact that at that time, no-one had properly explained to the child why he was not living with his mother. While, in some respects, this is to the credit of the parties and their families, in that the child was, in some ways, protected from the difficult situation, the result is that the child is likely to blame the father for taking him from his mother, when, in fact, the father deserves credit for his actions. Apparently, apart from being told that his mother had to go to hospital because she was stressed, and the false statement that she had cancer, the evidence was that the mother and her family had made no attempt to explain the true position to the child. The mother's evidence is that [K] does not need to know. Emma's evidence was that she and the father had tried to explain that, although his mother lives him, when she is not well she is not able to care for all aspects of his life.

58 As to the nature of the relationship of the child with each of his parents and

Emma, the counsellor said:-

"[K] spoke of his father without endearment. He said he would like his father to be different. What he hoped is that his father would be more loving and less difficult. In particular, he would like his father to be overtly affectionate towards him and tell him that he loves him. He also perceives his father's fiancée as unaffectionate. [K] does believe that his father and [EA] enjoy having him live with him."

59 However, there is additional evidence, which leads me to the conclusion that, although the child's relationship with his father is not as close, and probably affectionate, as the relationship with his mother, with whom he resided for his whole life until mid 2004, the child does have a reasonably good relationship with his father, for example, they do have regular hugs.

60 The child referred to his relationship with his mother as being 'pretty good':- "[K] said that the best thing about his mother is that she cares for him. He

spoke of his mother in the same terms as his father, that is that he was

unsure of how she feels about him. He spoke of missing his mother and is

saddened by the lack of contact with his mother."

61 It is clear that the child has an excellent relationship with both his maternal and paternal grandparents, and it is important he continue to spend time with them while he is in Perth.

62 As to the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents, or any other person with whom they have been living, the child was previously used to living with his mother and having regular contact with his father, which reduced in frequency

when the father moved to Eastern States. The child's present circumstances are that he lives in Eastern States and spends holidays in Perth with his mother. He has said that he took about six weeks to adjust to the move. He is obviously an adaptable and personable child, who is likely to adapt fairly readily to being separated from his father, should he return to Perth, and will continue to cope well with being separated from his mother if living in Eastern States.

63 As to the practical difficulty and expense of the child having contact with either 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, the mother is in poor financial circumstances and is not able to contribute towards the costs of contact. The father accepts that he will have to pay for the costs of transporting the child for contact purposes with his mother, should he continue to reside in Eastern States, or to visit his father, should he reside in Perth.

64 An important consideration in this case is the capacity of each parent or of any other person to provide for the needs of the child, including his emotional and intellectual needs.

65 It was not in dispute that the father was able to provide for the child's day to day needs, although it was suggested that he was not able to properly care for the child's emotio nal needs as he was not very affectionate towards the child. While he may well not be as openly affectionate as the mother, I do not accept that he, and [EA], are not well capable of provided the child with necessary emotional support.

66 As to the capacity of the mother, there is no doubt that the mother has suffered from psychiatric illness and has been hospitalised on several occasions. She has failed to comply with medication requirements, and as a result, has been subject to community treatment orders.

67 The mother's treating psychiatrist during her periods as an inpatient was Dr Swanepoul, and for two years, from August 2003 to August 2005, Dr Theobald, who gave evidence on her behalf, was her treating psychiatrist as an out-patient. At the time of trial, her psychiatrist was Dr Dionne Hayward.

68 The mother suffered from depression first in 1998. She was first hospitalised between 25 June and 9 July 2001, when the diagnosis was "major depressive episode with psychiatric features". She had a six month history of depressed mood in the context of social stressors. She was made an involuntary patient when she tried to leave against medical advice. She was discharged, quite settled, on anti-depressants and psychotic medication. Her second admission was from 20 August to 29 August

2003, the diagnosis being schizo-affective disorder - psychotic with hypomanic features. She was discharged on a community treatment order on anti-depressants and anti-psychotic medication.

69 Dr Theobald's evidence is that, when she is unwell, the mother presents with change in mood, disorganisation, irritability, thought disorder, and persecutory delusions. She reports as feeling very stressed and tends not to be able to function in work or social situations in the same manner as when she is well.

70 In July 2004, the mother told the child that she had "a little baby bit of cancer", which was obviously distressing for him. She told him she needed some treatment and it would be better if he was at his Dad's while she had the treatment. Obviously, the mother did not wish to tell the child, or others, that she was psychiatrically ill. Her affidavit evidence was that she accepted she needed help and "probably out of desperation at the time she said this".

71 There have been concerns about the mother's compliance with medication.

Between the mother's discharge from hospital in August 2003, until her readmission in July 2004, she missed six out of ten scheduled appointments with her psychiatrist. She admitted to the psychiatrist that she was changing her medication dose.

72 The father's case is that, while the mother's health was reasonable at times, it was not now in the child's interests to live with her because of her history of mental illness and the risk of recurrence.

73 The mother's case was that, while she had been ill, the child had been appropriately cared for. She was now well, and likely to remain so because she was now being compliant in her treatment. She also has extensive support systems, for example, with her mother and [MC].

74 There is evidence that the child was left unsupervised at times when the mother's health was deteriorating. However, there is little evidence of any direct impact on the child and, at trial, it seemed, to a considerable extent, the child has been shielded from his mother's health problems.

75 For the mother, it was submitted that this was because she did not verbalise her paranoia to the child. However, having had an opportunity to read the medical notes, I do not accept that when the mother's health was deteriorating, prior to her hospital admissions, her behaviour was so normal that it would not have had a negative impact on the child.

76 There is evidence, in the medical notes, that the mother, on several occasions, has medicated the child nightly with Phenergan, although she admits only doing this, appropriately, with a pharmacist's advice, on one occasion.

77 There is an issue in the medical records as to whether the mother regularly uses cannabis, as this was not recommended. While there is some doubt as to the extent of her previous cannabis use, I accept that, for some time now, since [MC] has been living with her, she is unlikely to have used cannabis.

78 In evidence were the mother's extensive medical records, which illustrate the episodic nature of the mother's illness and the need for ongoing medication and treatment.

79 It is also obvious from the notes that, while not admitted to hospital, she was having some ongoing mental health problems including paranoid thoughts, depressed mood and difficulties in relationships and in coping.

80 On 26 September 2003, not long after the mother had finished her second admission to Fremantle Hospital, it was noted that the mother's insight was quite limited.

81 On 1 October 2003, Dr Theobald reported to the Mental Health Review Board that she recommended that the mother should remain on a community treatment order for a further three months. She had presented as quite angry concerning her admission.

82 On 25 November 2003, the Mental Health Review Board, in its reasons for decision on the mother's application to review her involuntary status, which was successful, noted it was satisfied that the mother suffered from a serious mental illness that required treatment, and treatment was required to protect her and others from risk. However, they were relying upon her undertaking to continue with all aspects of her treatment.

83 On 16 July 2004, the out-patient notes refer to the chance of relapse with increased stresses and noted a lack of compliance with the medication regime. On that date, the respondent's mother, [Mrs R], had been sufficiently concerned to contact the mental health nurse and she was admitted shortly afterwards. [Mrs R] has attended the mother's psychiatrist with her, and certainly knows about the symptoms of the respondent's condition.

84 The mother was hospitalised from 19 July 2004 to 31 August 2004, when her diagnosis was "relapse schizo-affective disorder with persecutory ideation, in context of poor/non-compliance with medication". She was then an involuntary patient.

85 On 17 August 2004, it was noted the mother was meant to have been having fortnightly follow-up since September 2003, but had failed to do so. She was referred to as being insightless and there was possibly inappropriate behaviour towards her son.

86 She was discharged on a community treatment order, because she had failed to take her medication and keep appointments.

87 On 30 August 2004, Dr Swanepoul reported that

"Her engagement with our service has mostly been as an involuntary patient. [Ms A] has shown very little insight into her illness, which has resulted in poor engagement with treatment … her capacity to parent her son is negatively impacted upon when unwell."

88 There were concerns during this admission about the mother possibly having an inappropriate relationship with another patient. It is clear that she was far from being a compliant patient.

89 On 27 January 2005, Dr Theobald notes the mother was enquiring as to the impact of adjusting her medication.

90 On 20 February 2005, there was further discussion about medication. Dr

Theobald described the mother as "calm, pleasant, appropriate, no evidence

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accompanying of psychosis or effective disorder and she spoke warmly at that point about [K] and [K]'s (sic) progress she accepted in Eastern States".

91 On 28 February 2005, the community treatment order lapsed.

92 On 22 March 2005, it was noted by Dr Theobald that the mother was warm, pleasant and appropriate at the interview, asking appropriate questions regarding diagnosis, "no arguing" (this tells me that there were likely to have been occasions when the respondent had argued). However, she had admitted not taking Seroquel since her discharge, although she had attended regularly for depo injections.

93 On 16 May 2005, the mother swore an affidavit saying she was on no medication, although in the next sentence she said this was apart from a small amount of Seroquel.

94 On 17 May 2005, Dr Theobald notes that the mother did not wish to continue on depo, but she had made it clear she then needed to remain on it for another year. She had agreed to take oral anti-psychotic drug, Seroquel, instead of depo and to continue Endromax, an anti-depressant. It was noted the mother appeared to understand her presenting symptoms well.

95 The evidence of Dr Theobald was that the mother's medication would need to continue for about two years from the last episode, which at the time of trial, took it towards the end of 2006. Her evidence was that there is a chance of relapse if there are increased stresses in the mother's life with a lack of compliance with the medicative regime.

96 It is the case that the mother has considerable support from her mother and [MC]. She has given the necessary authorities so her mother and [MC] can speak to mental health professionals if they have concerns. I accept that both [Mrs R] and [MC] are well aware of the mother's symptomology.

97 In her report of 15 August 2005, Dr Theobald said:-

"Since that time [late 2004], [Ms A] has become increasingly reliable in her attendance for follow-up appointments, and since January 2005 has not missed her regular medical appointments (although she telephoned a couple of times to reschedule). She is no longer on a CTO, and although she was on depot medication until mid May 2005, is now only on oral anti- psychotic and antidepressant medication (Seroquel 200mg nocte; Efexor- XR 75mg). I am happy that she is compliant with these.

[Ms A] has become much more settled and engageable with increasingly good input. Although she debates the label "schizoaffective disorder", she wholly accepts that at very stressful times in her life she has had "breakdowns", and that one of the prominent symptoms for her is paranoia: She is happy to continue on the medication, as it has few side- effects for her and helps her sleep. She also has better social supports in place.

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[Ms A] is currently holding down three part-time jobs (school cleaner, catering, and tea shop assistant), and seems to cope well with this. She attends the gym regularly, and her self-care is good.

Prognostically, it is possible [Ms A] could have further relapses, given the nature of her illness. However, given her willingness to continue being monitored by Mental Health Services, to continue taking prescribed medication, her good social supports, and her agreement with both her mother and her flat mate that they can contact our Service should she show signs of deterioration, then we would hope to avoid relapse. [Ms A]'s inter- episode functioning has always been good, and there has never been a suggestion that she is anything other than a good mother when she is well. She currently misses [K] considerably, and expresses this in an appropriate way, always thinking about what would be in [K]'s best interests. She thoroughly enjoys the time she is able to spend with him On school holidays, and seems to engage in appropriate activities with him. He also enjoys his time seeing [Ms A]'s mother, who remains very supportive.

I believe that if [Ms A] is able to regain custody of [K], should she become unwell again [Ms A]'s mother would. quickly step in to monitor [K]'s welfare. I do not believe, even when she is unwell, that [Ms A] significantly jeopardises [K]'s welfare, although I am aware she kept him off school inappropriately for a while. Regarding other statements in the affidavit of her husband, Mark A, [Ms A] has always strongly stated that she gave [K] only one dose of Phenergan, at an appropriate dose, and we have no actual evidence that she did other than this. Regarding [K] being overweight, this had been a long standing problem, and was present even when she and her husband were still married. She states that on his visits she continues to encourage healthy eating and some exercise for him."

98 In her trial documentation, the mother, not surprisingly, downplayed her problems, for example, saying "the state of my mental health has not been as good as I would have liked". It is apparent from the medical evidence that while the mother may have been fairly well in 2005, her mental health problems have been serious and ongoing over a number of years. It is not the case that she has been entirely well between episodes.

99 Quite apart from any recent developments, despite the valiant attempts of her counsel, although Dr Theobald was very supportive in her evidence and the mother can rely on her mother and [MC] for help, I am not satisfied that the respondent can be relied on, in the long term, to be capable of providing a reasonable quality of care overall for [K].

100 It would seem that the issue of whether or not the mother is likely to suffer a relapse has been overtaken by events, in that she has indeed recently suffered a relapse. Obviously, if hospitalised, she is presently not capable of caring for the child.

101 As to the child’s maturity, sex and background, and any other characteristics of the child the Court thinks are relevant, by all accounts, [K] is a sociable, quite popular, generally happy child, who is well-behaved and mannered, and non defiant. He is said

to be 5 feet 10 inches tall (or 177.8 centimetres) at 12 years of age, although this seems moderately unlikely, since it would have meant 10 centimetres increase in height in four months. While living with the mother, there was some cause for concern about the child missing school. The child was then attending the local primary school.

102 In 2002, [K] was experiencing problems with his school work and was assessed by the school psychologist. Her report, dated 23 May 2002, refers to the fact that earlier in that school year, the child's mother experienced a great deal of difficulty in getting him to come to school. [K] reported that he liked his teacher, but he found the work in class very hard at times. The school psychologist concluded that difficulties for the child were evidence in short term auditory sequential memory and working memory skills. Various strategies were suggested to improve the situation.

103 The school provided the child with extra tutoring. The father's evidence was that he, by arrangement with the mother, provided an additional $35 per fortnight for private tutoring as recommended by the school psychologist, since the beginning of the 2003 school year, but the mother admitted to him that she had not spent the additional funds on the child's education, saying it was for child support. This is not surprising as child support supplied was very modest.

104 When the child commenced at the local primary school, in mid 2004, there was a concern about the child's reading and writing abilities.

105 [K] was assessed by a psychologist, in Eastern States, in August/September

2004. The report said that the child had been referred by his class teacher due to

concerns about his literacy development, that is, reading, writing and handwriting, as he was reading at a just independent, about Year 1, level in Year 5. "[K] has stronger mathematics ability. [K] is described as friendly, cooperative, quiet, having good social skills and applying himself at school".

106 The conclusion was:-

"This assessment again finds [K] displaying age appropriate intellectual ability and continues to indicate that specific literacy difficulties are not attributable to general cognitive limitations. However, worries about family matters and school progress, may have affected [K]'s consistency and confidence in school learning and application. …

107 Individual support and regular practise is necessary to enhance [K]'s reading fluency and confidence and to strengthen his understanding of common letter combinations."

108 An intensive school and home reading programme was initiated and [K] read 63 books at home, with the father, between 9 October 2004 and 1 May 2005. [EA] has also helped [K] with his reading and homework.

109 The father's evidence is that the child has continued to excel at school during

2005. This is perhaps an overstatement, but he has been elected as a house captain,

taken on mentoring a new student for the first few weeks of the school year, attended a

school camp in Canberra from 16 to 20 May 2005, and helped out with the annual school production.

110 In the child's school report of December 2004, his teacher says:-

"[K] has settled in well at [school] and is a responsible, cooperative and friendly class member. He is very reliable and always volunteers to assist whenever help is requested. He was a most dependable member of the back stage crew during the Grade 6 play. His willingness to work hard on improving his skills is very pleasing and his attitude is fantastic. Apart from reading at home, [K] would also benefit from practising his tables … Well done [K] on the way in which you have settled in at [the school] and made new friends."

111 At that time, [K] had been in a Grade 5/6 composite class.

112 During 2005, he has been in a Grade 6 class, so really, stayed down this year.

113 In the child's report of 26 April 2005, the teache r reported [K] had friendly relationships with his classmates and had developed a close relationship with two students. He attended school regularly, he was always punctual and was rarely absent, however, "his academic progress is well below what is expected at his grade level, especially in English (reading, writing and spelling). His maths skills in comparison with his English skills, are considerably stronger, although not at the expected standard".

114 Reference was made to the child's reading support programme. He had begun reading at Level 17 in the Alphakids Series and as at April 2005, was reading at Level

22, so was showing steady improvement.

115 An issue which arose at the end of the trial was that the mother was criticised for suggesting the child should go into Year 8 if he returned to Perth, to stay with his peers, rather than enter Year 7 as was proposed in Eastern States. It is clear that the child would have difficulty in keeping up should he be in Year 8 and this is likely to place him under more pressure. The issue was somewhat academic since I determined the child should stay with the father anyway, the educational issue not being as significant as other factors.

116 The child has had a serious problem with obesity. In June 2001, when the mother was first admitted to hospital, the child weighed 63 kilograms (when he was much shorter than he is now). The father's evidence is he tried to convince the mother to take the child to see a specialist, but she refused. He took the child to his general practitioner, who referred him to a paediatrician, Dr Michael Slattery. The child attended Dr Slattery on three occasions and [K] was referred to a dietician who recommended changes in his dietary intake. By February 2002, the child weighed

67.85 kilograms. In late 2002, the father took [K] back to the paediatrician, who said that he had not lost any weight and that more extreme measures, such as appetite suppressants, may be necessary.

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117 In late 2003, the father asked the mother to take the child back to see Dr Michael Slattery, but she refused, saying that the child was not overweight. In an affidavit sworn on 23 December 2004, the mother deposed that [K]'s weight was not an issue.

118 When the child arrived in Eastern States in July 2004, he weighed a horrendous

99 kilogrammes at 11 years of age, which is at the morbidly obese level. The cause of this is not clear, and may well be related to his mother's problems, or even because he was missing his father. Since arriving in Eastern States, the father's evidence is that the child has followed a healthy eating patterns accompanied by moderate exercise. This has borne fruit in that the child lost 6 kilograms over his first two months in Eastern States, and was proud and happy about his achievement. The child is now playing basketball and training twice a week (he did also play basketball when living in Perth).

119 The father had taken the child to see a paediatrician, Dr Sloane, who provided a report dated 5 November 2004. Dr Sloane indicated that an acceptable target weight would be 80 kilograms, although an ideal weight for the child's height would be 65 kilograms.

120 On 4 May 2005, Dr Sloane reported that the child's height was 167 centimetres and he weighed 84 kilograms, which produced a body mass index of 30.12, while the upper limit of normal for his age is 24.

121 The father's evidence is that on the child's recent trips to visit his mother, he has returned heavier. As at 1 May 2005, the child's weight was 87 kilograms.

122 Surprisingly, the mother said the child has lost weight partly because he was unhappy in Eastern States, although she does accept he is now healthier.

123 There is no suggestion that the child has ever been subjected to physical or psychological harm as a result of being exposed to abuse, ill treatment, violence or other behaviour or family violence. However, I do have some concerns as to what the child has had to cope with, at times, his mother's mental health was deteriorating.

124 As to the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, both parents obviously love the child very much and are doing their best for him, in what have been difficult circumstances.

125 The mother, raised some issues of criticism of the father, for example, she said that prior to his present relationship, the father had never lived in his own home, and did not bother calling [K] during this time, moving around and changing jobs regularly.

126 However, I accept the father has maintained very regular contact with [K] throughout his life, and a fairly high level of contact after his move to Eastern States. He and [EA] have also shown commitment to the child in taking on his care, and these proceedings, with the high costs involved. They have moved from a city apartment to a suburban home because of their changed circumstances.

127 It is the case that it may well have been better for [K] had the father and [EA]

not moved to Eastern States, and it could be in [K]'s interests if the father returned to

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Perth, so there can be more frequent contact with the mother, friends and family. However, I accept that there co uld be negative aspects to this, as unsettling the child and possibly exposing him more to his mother's illness, and conflict between the parties.

128 I also accept that the father could have done more to facilitate the mother's contact with the child from September to December 2004, although, in some ways, this was not a bad thing as it gave the child an opportunity to settle in to Eastern States, and the mother was not entirely well at that time. However, the contact since then has been appropria te.

129 When the child was living with the mother, in 2002/2003, the father was only assessed to pay $90 per month child support, but he paid $150 per week plus some voluntary tutoring payments and for karate. He was assessed to pay only $21 per month from February 2003 to April 2004, although he had a taxable income of

$82,000, apparently as the result of a capital gain. I accept that the father was not

generous with child support, although he has met his legal obligations.

130 As to the mother's attitude to parenting, the father claims there were occasions when the child telephoned him in 2003, early in the morning, to say he was by himself as the mother was at work and had left while he was asleep. This was supported by the applicant's father and stepmother, who said that on several occasions the child mentioned to them that his mother worked in the morning and he had to get his own breakfast. His mother came home just before he went to school.

131 For the father, it was submitted that, really, the mother was more concerned about herself in that she wanted the child back at all costs, than the child. For example, she wanted the child to return to Perth immediately, although the child was looking forward to being involved in a school play in October 2005, which the paternal grandparents were going to Eastern States to attend. The mother's evidence was that she was confident the child would rather be back with her than in the play, but eventually she conceded that any changeover could occur after the 2005 school year finished.

132 As to 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, I consider that, whatever order I make, there is unlikely to be further proceedings unless I placed the child with the mother and her health deteriorated. Eventually, the child's wishes will become decisive.

133 As to any other facts or circumstances that the Court considers relevant, any matters I have not previously referred to, are discussed in my conclusion.

Conclusion

134 The issue is, having regard to the relevant factors, and the child's best interests as the paramount consideration, whether he should to continue to reside with his father, in Eastern States, having regular, but not frequent direct contact with his mother, or reside in Perth with his mother and have similar contact with his father.

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135 The child has lived with his mother since a very early age, until July 2004, when he moved to live with the father as a result of the mother's mental health problems. Before then, the father maintained regular contact with the child throughout his life. Since, although the child did not have contact with his mother later in 2004, since January 2005, the father has ensured that the child visits Perth regularly to see his mother.

136 The child has a warm and affectionate relationship with his mother, and obviously feels great loyalty to her as being his primary carer for most of his life. Not surprisingly, his expressed wishes are to live with her and, having regard to his age, these wishes must be given considerable weight. However, the weight to be given to these wishes is affected by the fact that the evidence is clear that the child has settled well into his life in Eastern States, with the father, and his partner [EA], and his school performance and health has improved markedly, even if there is still further progress that may be made. The child has made friends and been accepted into his school community. He has been actively involved in sporting activities.

137 While he says he would like to live with his mother, the sad truth is that, while he enjoyed his life in Perth with her, there were serious problems. In particular, the mother's mental health has been variable, and cyclical, over the last four years and I do not accept that at times when the mother's mental health was deteriorating, her standard of care of the child has not suffered. For some of the time, she has been quite seriously ill and the medical evidence is clear that there is a risk of relapse, which I gather has now occurred. While there is little evidence as to the impact of the mother's mental health on the child, the mother does accept that at times when she is ill, the child should not be in her care. Unfortunately, the mother's opinion as to when she is sufficiently ill not to have the care of the child cannot be relied on. While the respondent's mother and [MC] may well be relied on to get help for the respondent, I am not satisfied they would necessarily keep the applicant fully informed about any deterioration in her condition. There is no doubt that the respondent has not been kept fully informed in the past. Frankly, I have concluded that the mother's health problems have been far more serious than she has maintained.

138 There is also the fact that the child has had some learning difficulties which the mother made some attempt to address, but which I accept, at least to some extent, have been addressed in a more constructive way by the father. In addition, the child was morbidly obese, which the mother was unable to deal with successfully. While the child is still overweight, considerable progress has been made in this regard.

139 It is a significant consideration that if the child is living in Eastern States, he has limited contact with his mother, as well as both sets of grandparents, with whom he has a close relationship. However, the father's proposals involve eight visits to Perth each year, which ensures that the relationship is appropriately maintained.

140 I accept that in pursuing residence of the child, both parties have had appropriate motives. Clearly, the mother just wants the child to be with her in his former home and environment of many years. The father has maintained his involvement in the child's life since his birth, and appropriately felt it was necessary to take this action, with its substantial effect on his life, because of what were, by then, ongoing problems with the mother's health.

141 I accept that when the child is older, he may well vote with his feet, and end up back with his mother in Perth. However, in the meantime, I am satisfied that it is in the child's best interests to reside with his father because of the better standard, and stability, of care overall that he and [EA] are able to provide. Having regard to the history of the last four years, I am not prepared to take a chance on the mother's ability, overall, to provide an acceptable standard of parenting for the child, when the father has proven that he can provide a better alternative, even though it is not ideal that he lives so far from the family in Perth.

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142 As to the proposed contact arrangements, it is in the child's interests to have some holiday time with his father, but more than half the time should be spent in Perth to ensure the child has ample time with his mother and grandparents. I am unaware of what has happened during the present holidays in relation to the child's contact with his mother, and presume that there must have been problems in this regard if the mother's health has apparently deteriorated.

143 I will obviously be prepared to hear any further submissions about the contact arrangements, having regard to the present circumstances. Generally speaking, the child should visit Perth during holidays and stay with his grandparents if his mother is not well.

144 The father should be kept informed of developments with the mother's mental health, and the mother should be kept informed of the child's health and progress.

145 I know the child has had some counselling. I expect, by now, proper arrangements should have been made to inform the child, in an age appropriate way, of the reasons for what has happened in his life. If not, this should be done as soon as practicable, preferably through a counsellor.

Proposed orders

1. The child of the parties, [K], born June 1993, reside with the applicant father.

2.The child have unlimited telephone contact with the respondent mother and his grandparents, and contact by e- mail and webcam.

3.The respondent mother have reasonable contact with the child on the following terms:-

(1) While the applicant father resides in Eastern States and the respondent mother resides in Perth:-

(a) for at least 11 days of each Eastern States school holidays during the school year;

(b) for four weeks of the summer school holidays, to include

Christmas in each alternate year commencing 2006;

(c) for a long weekend visit of three nights on one occasion during each school term.

(d) while the child is in Perth for contact visits, the respondent mother facilitate the child having a day time visit to his paternal grandparents on weekends at least one overnight visit to his paternal grandparents during mid year school holiday contact and two overnight visits to his paternal grandparents during summer school holiday contact;

(e) the applicant father pay the costs of the child's travel between Perth and Eastern States for the purpose of contact pursuant to these orders.

(2) In the event that the parties both reside in Perth:-

(a) on alternate weekends from after school on Friday until

5:00 pm Sunday;

(b) one night per week from after school until 7:00 pm; (c) for one half of all school holidays.

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4.The respondent mother authorise any of her treating medical practitioners to discuss with the applicant father her ongoing state of mental health when reasonably requested by the applicant to do so.

5.The respondent mother shall notify the applicant father of the names of her treating mental health professionals at all times.

6.The applicant father keep the respondent mother informed of any significant medical treatment of the child, particularly in relation to his obesity, and provide copies of school reports, and ongoing advice as to the child's progress.

7. The applications otherwise be dismissed.

I certify that the preceding [145 ] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Associate