Mendiola and Velez-Montana

[2009] FamCA 211

FAMILY COURT OF AUSTRALIA

MENDIOLA & VELEZ-MONTANA [2009] FamCA 211

FAMILY LAW – CHILDREN – 4 year old boy – Parenting and care – Mother’s capacity to meet child’s emotional needs – Orders leaving child with father

APPLICANT: Mr Mendiola

RESPONDENT: Ms Velez-Montana

INDEPENDENT CHILDREN’S LAWYER: James John Bult

FILE NUMBER: MLC 4 of 2007

DATE DELIVERED: 2 February 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Melbourne

JUDGMENT OF: Jordan J

HEARING DATE: 27, 28, 29 & 30 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Allan

SOLICITOR FOR THE APPLICANT: Doolan Kemp Townsend

COUNSEL FOR THE RESPONDENT: Ms Athanasopoulos

SOLICITOR FOR THE RESPONDENT: McNab McNab & Starke

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Marchetti

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER McCluskys Lawyers

Orders

IT IS ORDERED

1. That all previous Parenting Orders be hereby discharged.

2. That the Father have sole parental responsibility for the child, …, born … August 2004.

3. That the said child live with the Father.

4. That the said child spend time with the Mother at all such reasonable times as may be agreed, to include:

   (a)Until the said child commences school in 2010, from midday Saturday to 3.00 pm Tuesday in one week per fortnight;

   (b)Until the said child commences school in 2010, from 10:00 am Sunday to 3.00 pm Tuesday in the other week;

   (c)On the said child commencing school, from after school Wednesday until after school Friday in one week per fortnight;

   (d)On the said child commencing school, from after school Friday until commencement of school Monday in the other week;

   (e)Commencing in 2010, half of all school holidays, with the Mother to have the first half in all odd-numbered years and the second half in all even-numbered years; and

   (f)Notwithstanding sub-paragraph (e) hereof, the parties are to share Christmas Day, so that in odd-numbered years the said child spend time with the Father from midday Christmas Day to midday Boxing Day, and in even-numbered years the said child spend time with the Mother from midday Christmas Day to midday Boxing Day.

5. (a)     That should Father’s Day fall in a time the said child would be with the Mother pursuant to these Orders, the said child to spend time with his Father from 5.00 pm Saturday to 5.00 pm Sunday of that weekend.

   (b)That should Mother’s Day fall in a time the said child would be with the Father pursuant to these Orders, the said child to spend time with his Mother from 5.00 pm Saturday to 5.00 pm Sunday of that weekend.

6. That the parties share the responsibilities for changeover as follows:

   (a)In relation to the Mother’s time prescribed in paragraphs 4(a) and (b) hereof, the Mother collect the said child from the Father’s home at the commencement of such time and the Father collect the said child from the Mother at the end of her street at the conclusion of such time;

   (b)In relation to the Mother’s time prescribed in paragraph 4(c) hereof, the Mother collect the said child from school at the commencement of such time and the Father collect the said child from the Mother at the end of her street at 7.30 am on the Friday morning to deliver the said child to school;

   (c)In relation to the Mother’s time prescribed in paragraph 4(d) hereof, the Mother collect the said child from school at the commencement of such time and return the said child to school at the conclusion of such time;

   (d)In relation to all other times prescribed by these Orders, unless otherwise mutually agreed, the Mother to collect the said child from the Father’s house at the commencement of such times and the Father to collect the said child from the end of the Mother’s street at the conclusion of such times.

7. That Orders 4(c) and (d) be suspended during all school holidays and recommence after any holiday period in the same sequence as prior to the holiday as if the holiday had not taken place.

8. That on the child’s birthday, the child spend three (3) hours with the parent he is not spending time with that day as a consequence of these Orders.

9. That on the birthday of his sister D, the said child spend time with the Mother from 5.00 pm the night before the birthday to 6.00 pm of the birthday.

10. That the said child spend time with each parent on the day of each parent’s birthday from 4.00 pm to 7.00 pm.

11. (a)     That notwithstanding the provisions of paragraph 2 hereof, the Father consult with the Mother prior to making a decision relating to any major aspect of the said child’s health, education and extracurricular activities and keep her informed of all such decisions made.

    (b)That the parties confer in relation to such matters.

12. That all extant Applications be dismissed.

13. That the appointment of the Independent Children’s Lawyer be hereby discharged.

14. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Mendiola & Velez-Montana is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: MLC4 of 2007

MR MENDIOLA

Applicant

And

MS VELEZ-MONTANA

Respondent

REASONS FOR JUDGMENT

ex tempore

1. At issue in this case are the care and living arrangements for a child born in August 2004.

Background

1. The parents of the child were born in South America but met in Canada in 2001 and thereafter they entered into a relationship of types which was subject to fluctuations, but which ultimately led to marriage in January 2004.

2. The mother and her family had resided in Australia throughout a significant portion of the mother's life and in February of 2004, the mother returned to Australia and in August of that year she gave birth to the child.

3. The nature of the parties' relationship remained problematic, but in November of 2005 the father visited Australia between November of 2004 and February of 2005.  The mother subsequently approached the father and, whilst there is some disagreement about the precise nature of those discussions, I gather the mother expressed an interest in resuming the relationship.  The father was also interested in resuming the relationship and making an endeavour to work together as a family for the benefit of the child.  In April of 2006, the father arrived in Australia.  Unfortunately, the relationship between the parties failed and they separated in May or June of 2006.

4. On 2 June 2006, when the child was 22 months of age, the mother attended at the offices of the Department of Human Services, indicating that she was struggling with the responsibility of caring for the child and requesting help.  Again, there is some uncertainty about what followed, but in any event the mother chose to leave the child with officers of the Department and thereafter the Department initially placed the child with the maternal grandmother until December of 2006, when the child was placed in his father's care.

5. The mother had enjoyed regular supervised contact with the child whilst he resided with the maternal grandmother, although there ultimately was a falling out between the mother and the maternal grandmother.

6. Proceedings were instituted in the Federal Magistrates Court and in May of 2007 orders were made for equal shared parental responsibility and orders were made providing for the child to live with his mother for four nights per fortnight.  Later, those orders were expanded to provide that the child resided with his mother from 10 am Saturday to 3 pm Tuesday and from 10 am Sunday until 3 pm Tuesday alternating and thereby spending five days per fortnight with his mother.

7. In April 2008, the mother gave birth to a daughter, D, a child of a relationship with another man.  That man no longer has any association with the mother in these proceedings or with his daughter.

8. The father's proposal is that the child should continue to reside with him, that he should have sole parental responsibility and that the child should spend time with the mother from 10 am Saturday to 6 pm Monday until he commences school and thereafter from after school Wednesday to the commencement of school Friday in week one and from 10 am Saturday to school on Monday in week two.

9. The mother's proposed orders are that there should be shared parental responsibility and that the child should reside with her and spend time with the father from 6 pm Friday to 6 pm Sunday each weekend and at other times as agreed.

10. In this matter, there is also a report prepared by a Family Consultant and in that report she recommended that the Court make orders to have the child reside with his mother and spend alternate weekends with his father.  She recommends that the mother have sole parental responsibility.

11. Notwithstanding those recommendations, at the end of the trial, the Independent Children's Lawyer submitted that the Court should order that the child live primarily with the father, that the father should have sole parental responsibility and that the child should spend five days per fortnight with his mother on a basis similar to those prevailing under the existing orders.

The evidence

1. The history suggests that many significant challenges have been placed in the path of the child and his parents over the last four to five years.  At various times, the child has only had the benefit of the care of one parent.  He was abruptly removed from his primary care-giving mother at a critical age of 22 months and placed with his maternal grandmother.  He was subsequently removed from the grandmother's care and placed with his father.  Over a significant period of that time, the child’s mother was battling with her own problems.  Over the last two years, the child has been in the care of a father who has, at various times, had little or no means to support himself, has struggled to maintain adequate accommodation and has had the spectre of deportation hanging over his head on a daily basis.

2. It is inevitable that these events would have had some impact upon the child.  However, happily, there are no obvious signs at this stage and, to the contrary, to the great credit of each of his parents, the child presents as a happy, healthy child who shows all the indications of being very well cared for.  No doubt, one of the things that has sustained the child is the fact that he has the benefit of two loving parents.

3. The problem for the child and the problem for this Court is that his parents cannot get on, they cannot communicate, they do not trust one another, they cannot co-parent and they have very different personalities, priorities and parenting styles.  In her application, the mother seeks shared parental responsibility, but she tells the Court that she has not and will not engage in any discussion with the father.  She says discussion produces only conflict and that she has found that the only way she can function is to completely exclude the father from her life and that, for her sake and for the sake of her children, this is the way she intends to live her life.

4. The father seeks sole parental responsibility based upon that reality and the Family Consultant and the Independent Children's Lawyer each maintain that, regrettably, joint parental responsibility is not viable in this case.

5. I accept that the father remains open to communication, but the mother's personality and the strength of her feelings are such that I have reached the firm conclusion that, not only is shared parental responsibility not viable, it would, in fact, be entirely counter-productive and a recipe for serious ongoing conflict, which is not in the child's best interests.

6. The parties currently live a significant distance apart and, unfortunately, this is a case where I will need to make orders vesting parental responsibility with one of the parents.  Given the difficulties, differences and distances I have earlier referred to, equal shared time between households is also neither viable nor in the child's best interests and I will be required to define the child’s time in each household.

7. Whilst I have appropriately noted the parents' dedication and commitment to the child, it remains the case that they each carry forward very serious question marks over their respective capacity to continue to meet the child’s needs.

8. In the case of the father, his unsettled past is matched by his uncertain future.  He has had multiple changes of address since his settlement in Australia in 2006.  His current accommodation is provided gratuitously by a community group and is necessarily subject to the claims of the more needy at any time.  His capacity to continue to provide financially for his son may remain quite problematic, given his uncertain status and his present ineligibility for social security. 

9. Most fundamentally, his continuing presence in this country and his availability to his son is in the hands of others and could be abruptly brought to an end at any time.  His application for residency was rejected by the Government Tribunal and he is now at the mercy of the discretion of the Minister.  Whilst there are some more recent positive signs in that regard, the Court has not been provided with any evidence which enables anyone to make clear predictions one way or another.  Vesting parental responsibility and primary care with the father necessarily places the child in a situation of great uncertainty. 

10. Similarly, there are significant concerns about aspects of the consequences of the placement with the mother.  She brings with her a long history of mental health issues which have resulted in multiple attempts at suicide and multiple hospitalisations.  She has struggled throughout her life in relationships of all kinds and she has struggled from time to time with the demands of parenthood.  It appears June of 2006 was something of a low point, where the mother admits she was incapable of caring for the child, although she now explains her difficulties in terms of physical ailments being experienced by each of them at that time.  Events prior and subsequent to her rather drastic decision to leave the child with the Department established that the problems behind the decision made by the mother and others in 2006 were much more deep-seated and remain an issue at this time.

11. Doctor K, consultant psychiatrist, was retained by the Independent Children's Lawyer to undertake an assessment of the mother.  He provided a report dated 19 December 2008 and in that report Dr K sets out the nature of the mother's presentation and history and includes the following observations:

    "From the psychiatric viewpoint [the mother] shows little in the way of overt disturbances at this stage.  Be that as it may, she presents as someone in the past who certainly had a major personality disorder, probably of the borderline personality type, substance abuse, chronic depression, and at times psychotic features.  My preferred diagnosis with her at this stage is of:

    (a)a personality disorder not otherwise specified;

    (b)a chronic depressive illness currently in a statement of remission;

    (c)previous substance abuse including alcohol has ceased.

    Her mental state was consistent with the above diagnosis.  Her main symptoms were of:

    (1)that physically she felt she was in reasonable health;

    (2)she had suffered from depression since she was 16, although it was much less frequent now;

    (3)she had ceased substance abuse by 2001, and had not taken any substance abuse since with the exception of occasionally having alcohol; and

    (4)the problems over custody have given her stress type feelings.

    Given her psychiatric history of frequent admission and multiple major difficulties in earlier years, it is surprising in some ways that there has been basically a good, and steady improvement with her.  However, this leads me to believe that in fact her original diagnosis was of a borderline personality disorder, and it is true that sometimes people with that florid syndrome do in fact subsequently settle significantly as they move into their thirties.  I gained the impression that this is what had happened with her.  However, she is still prone to having some significant depressive attacks from time to time

    ...

    To sum up, this is a woman whose psychiatric state was very severe with numerous ill health problems in her teenage years, and going through probably till close to 30.  There has been a very significant improvement in her, and in some ways there is little to see in a psychiatric examination.  Be that as it may, she has the psychiatric diagnosis outlined by me above.  It is still likely that there will be some further depressive attacks, but I would expect her to continue to slowly improve.  She is having the correct treatment in that she attends a psychologist, and also her local doctor prescribes medication.  Currently her major difficulties are that she is stressed about the oncoming Family Court hearings.  From the psychiatric viewpoint she appears to be someone who will be quite capable of full custody of both of her children.  A Court though will have to decide on the issues of facts surrounding those matters, and come to its own appropriate conclusion.  In general terms her psychiatric improvement has occurred probably because her disorder was of the borderline type, and quite often as people approach their forties they are in much better psychiatric health than existed when they were years younger."

12. In his oral evidence, Dr K explained that people with the mother's personality disorder are likely to experience major problems in virtually all relationships and to continue to experience patterns of unstable behaviour.  He said that such people are likely to hold their views intensely and can experience extreme feelings of affection and hatred.  He said that even currently intact relationships, like those the mother says she currently enjoys with her mother and sister, could be the subject of major fluctuations in the future.

13. Dr K said that, as a consequence of relationship difficulties generally, such people function best in isolation.  He said that the mother presented as a person capable of providing a high standard of physical care for her children and that she appeared to be driven to do so.  Dr K, however, identified concerns about the mother's capacity to put her children's needs, including their emotional needs, ahead of her own emotional needs, which are necessarily a high priority for someone with the mother's history and personality.

14. In this matter, I also had the benefit of the report and evidence of one Ms R, a clinical psychologist.  Ms R has been providing the mother with therapy since 2007.  She was requested by the mother to provide a report which is now before the Court and dated 12 November 2008.  Ms R reported positively upon the mother's progress, her commitment to therapy and the observed warm and positive relationship between the child and his mother.  It is clear that the mother has, indeed, benefited by the intervention of Ms R and that her ongoing support is likely to be of great assistance. 

15. At the same time, Ms R was clearly and appropriately troubled by the task of being both a therapist and a reporter and her notes raised some issues about ongoing difficulties in the mother's thought processes.  This Court has previously commented upon the inherent problems associated with therapists providing medico-legal reports and, in this matter, Ms R’s discomfort with such conflict was palpable.

16. I have absolutely no reason to reject any of the broader observations by Ms R in her written report, as they are consistent with the mother's history since mid-2006 and are largely confirmed by Dr K.  However, as to the detail of the mother's mental health and her prognosis, I have regard to the superior qualifications and objectivity of Dr K and place greater weight on his evidence.

1. I now turn to the report and important oral evidence of the family consultant, Ms S.  The firm recommendations in her report were to the effect that the child should live with his mother and spend only every second weekend with his father.  This recommendation was based on the observed positive and close attachment between the child and his mother and the mother's greater observed attunement to his needs and upon the importance the report writer placed on the child’s relationship with his baby sister.

2. Ms S was clearly much less impressed by the father and observed a much more detached association between father and son.  Ms S was also concerned about the father's handling of some sexual abuse allegations against the mother's sister, and otherwise questioned the father's commitment to the task of parenting the child.

3. Of course, the reality of the demands upon family consultants in this jurisdiction are such that only limited time can be made available to a family consultant to spend time with each family.  Ms S acknowledged the elements of artificiality to the exercise which are inherent in the limited interview and observation process available in such circumstances. 

4. It was clear that Ms S was not in possession of quite a deal of important information when she made her assessments and recommendations.  In particular, she accepted that some of her critical assessments of the father's commitment to the child and of his handling of the sexual abuse allegations were not sustainable when she was apprised of further material facts relating to the father's conduct.

5. She was also significantly reassured by evidence from the Department which indicated that, on other occasions, when the Departmental officers observed the father in interaction with his son, he was seen to present with a close relationship with his son and was observed to engage in age appropriate responses to his son's needs.

6. Ms S also acknowledged that disclosures at trial about the mother's attitude to the father might seriously compromise the mother's capacity to meet the child’s need for an ongoing, meaningful and healthy relationship with his father and that this was a very important factor to be taken into account.

7. Notwithstanding those matters, Ms S maintained that, on balance, she continued to favour a placement of the child with the mother because of her subjective observations of the mother's greater attunement to her son's needs and because of the desirability of having the siblings raised together.  However, Ms S said that the call was now much more marginal in light of the further information provided to her and was necessarily subject to the totality of the evidence available to the Family Court.

8. Before leaving Ms S’s report, I should particularly mention the contents of par 40, wherein Ms S records the father citing the fact that the child and the father "get bored with one another" as a justification for placing the child in the care of another woman for significant periods whilst the child was in his care.  That matter was clearly an important consideration in the adverse view Ms S took of the father's commitment to parenting. 

9. I have concluded that it would be entirely inappropriate to take the father's spoken words literally.  The father was operating through an interpreter on that day.  On the totality of the evidence, I have absolutely no sense that the father would, as it were, "dump" the child with a third party because he was bored with his son. 

10. A more sophisticated person whose first language was English would have, no doubt, better explained these matters.  I have concluded that the father’s motives were, indeed, much more honourable and child-focussed.  I accept that he provided such care arrangements because the child is an extremely active child who benefits from intellectual and interpersonal stimulation.  My sense is that the father is living in very minimalist accommodation and with very limited capacity to provide entertainment and distractions for his active four year old son and that he saw Ms L’s home, a home to nine children - albeit that some of them have grown up - as a much more stimulating environment for the child and that he decided it was in his son's best interests to spend time in such an environment.  I had no sense that the father is disinterested in parenting the child or that he would be likely to abandon that responsibility to others. 

11. As to my own assessment of the parties, it needs to be acknowledged that this was made somewhat more difficult as a result of the fact that the father gave his evidence through an interpreter.  Nevertheless, making proper allowance for such matters, I formed the conclusion that the father presented as a reliable witness.  I am satisfied that, despite the views expressed by Ms S and the even stronger views expressed by the mother, the father is indeed committed to his son.  Further, I concluded that concerns he expressed about the mother's parenting are child-focussed and not expressed as a means of gratuitous criticism of the mother.  I accept that he is entitled to have some concerns about aspects of her parenting by reference to past events and that his concerns are, in all the circumstances, reasonably held.

12. The father did not display any lingering signs of animosity and appeared to have dealt with the breakdown of his relationship with the mother.  He appeared genuine in his preference to engage with the mother in relation to the child, but realistically resigned to the fact that it would never happen, having regard to the mother's attitude to him.

13. I accept his evidence that he does, despite the differences between the parties, value the importance of the relationship between the child and his mother and that he has the capacity to positively foster that relationship in the future. 

14. The mother's presentation was much more complex in a way which might be partly explained by reference to Dr K’s assessments.  The mother presented as an intense, intelligent woman who has been significantly scarred by past events.  She presents with a dogged determination to have her children reside with her and a burning desire to provide for them.  She places a high priority on meeting their physical needs and providing them with routine and the best possible educational opportunities.

15. She acknowledges some of her past difficulties and the dysfunctional nature of much of her life.  In this regard, however, she does appear to have one marked blind spot when it comes to the father in these proceedings.  It is clear on all of the evidence that the parties endured a most difficult, dysfunctional relationship which was riddled with conflict and ended, no doubt, causing significant feelings of anger, resentment and mistrust.

16. The striking feature of the mother's presentation in this regard is that she appears to date to take a very rigid, unrealistic view of the roles the parties played, and continue to play, in the ongoing difficulties in their relationship.  She appears to largely hold the father responsible for everything that has gone wrong in her life since they met.  She fails to acknowledge any responsibility herself and does not appear to have any insight into her own presentation and history of relationship difficulties.  She does not appear to have any insight into her own contribution to the difficulties in the relationship before or after separation, which I conclude were likely to have been significant, given her history, her personality and her mental and emotional state during these periods.  She interprets everything the father does as calculated only to advance his own personal interests or to undermine her well-being.  She seems to take an extremely simplistic view that she can solve all her problems by merely excluding the father from her life. 

17. The mother argues, on the one hand, that the child has an important, close and loving relationship with his father and that he would be harmed if he did not have such a relationship, but, at the same time, steadfastly refuses to even sign a letter which might improve the chances of the child’s father being able to remain in this country and be available to his son.

18. I have no doubt whatsoever that the reality is that the mother would like nothing better than to see the father deported and that remains her firm hope.  She would perceive it that she and the child could then get on with their lives.  She appears unable to comprehend and to be unconcerned about any negative impact such a loss would have upon the child.

19. These attitudes are probably more readily understood by having reference to Dr K’s report and evidence, particularly in relation to such people tending to maintain extreme feelings of hatred.  In that context, such views are likely to be rigidly adhered to and the extent of her determination in that regard is, perhaps, best illustrated by her evidence before me on the topic.  As I have said earlier, the mother presents as an extremely intelligent person.  During the course of the trial and her cross-examination, she would have been acutely aware that her testimony in this regard was adversely affecting her case.  Nevertheless, and in the face of such risk, she remained absolutely steadfast and not interested in any step that might reduce the father's prospects of being deported, even if it was for the benefit of her son.

20. The mother has, in fact, told the family consultant that she thought the father was a "loser", and I have absolutely no doubt that that is an accurate reflection of the mother's views on that topic.  The mother is a person who has a strong work ethic and I note in earlier reports from the Department of Human Services that the mother's attitudes in that regard were assessed to appear to border on the obsessive, and her determination to pursue material and financial security appears to drive her.  The father may well be a person who does not share such a driven attitude to such matters but, to the extent that I have been apprised of it, the history indicates that, throughout the bulk of his adult life, he has pursued his career, and the mother's criticism of the father in more recent time appears to largely ignore the obstacles placed in his way as a consequence of his status in this country.

21. The mother regards the father as lazy and worthless.  She takes the view that he does not add any value to the child’s life.  I am confident that she will maintain that view and she does not see any value in the child’s relationship with his father.  She has made expressions in the past that she believes both the child and herself would be better off without him.  She has made statements to the effect that she would be happy if the father were dead.  And, as I have said, she would, in my view, be delighted if he were to be deported.

22. Having regard to these matters, I am convinced that, at the very least, the mother will not and is not capable of actively supporting and fostering the relationship between the child and his father.  At the other end of the scale, I am of the view that it is possible, if not likely, that she would seek to actively undermine the relationship between the child and his father, having regard to the intensity of her feelings and the nature of the mother's personality.

23. Whilst it has been submitted on behalf of the mother that the history since 2006 indicates that she is compliant with Family Court orders, I have some reservations about that assertion.  I accept the father's evidence that the mother has frustrated the orders for telephone contact and I have a concern that she might be less inclined to be compliant if she was the parent vested with primary control and primary care of the child.  Further, even if she did remain compliant with Court orders, I have a significant concern, as I have identified, that she would find it difficult, if not impossible, to otherwise foster and support the child’s time with his father. 

24. I have concluded that, should the child be placed in his father's care, the child will be free to have a meaningful and healthy relationship with the three most significant people in his life, being his mother, his father and his sister.

25. I have concluded that, should the child be placed with his mother, it is likely he will be discouraged from having a positive regard for, and relationship with, his father.  I take the view on all of the evidence that it is likely that the mother would regard loyalty by the child to his father as disloyalty to her, with all the attendant problems that would present for the child as he grows.  I have a concern that a placement with the mother would, in due course, give rise to the prospect that the child’s relationship with his father would be compromised, if not extinguished. 

26. Having regard to the totality of the evidence and my specific findings in determining what is in the best interests of the child, and having reference to the relevant provisions of the Family Law Act, I make the following further observations.

27. As to the benefit of the child having a meaningful relationship with both of his parents, I refer to my recent remarks. 

28. As to the need to protect the child from physical or psychological harm, I reiterate my concerns that the mother's attitude towards the father and the child’s relationship with him may well lead to the child experiencing some psychological harm. 

29. As to the additional considerations in terms of the nature of the relationship of the child with each of his parents and significant others, I note that he has a close attachment to each of his parents.  I accept that, at this stage, parenting might come more naturally to the mother and that she might currently be more naturally attuned to her young son's needs.  However, I reject the stark contrast identified in the written family consultant's report.  I find that the father is, in fact, attuned to his young son's needs and capable of being responsive to them. 

30. I take the view that the parents are of very different personalities and bring different qualities to their relationship with their son.  I accept that the child’s relationship with his sister is of fundamental importance and will continue to assume greater importance as each of them grows older.

31. On the issue of the willingness of each parent to facilitate the child's relationship with the other parent, I refer to my detailed remarks on that topic. 

32. As to the question of the effect of any change in the child's circumstances, I note that the child has been living primarily with his father for over two years and that this is obviously a most significant period in the life of a four year old.  As I will observe later, despite all of the challenges experienced by all three over the last two and a half years, the arrangements which have seen the child in the primary care of his father for the past two years give all the indications of having served him well.

33. As to the question of the capacity of each of the child's parents to provide for the needs, including the emotional and intellectual needs, of the child, I find that each of the parents has the capacity to meet the child’s physical needs and, in that regard, at one level, the mother might be better served.  She is able to, perhaps, provide a higher standard of care in a material sense, and I accept that she places a high priority on important considerations such as routine and education.  On the other hand, the father, in my view, is better equipped and better able to meet the child's emotional needs to be free to have a close and meaningful relationship with each parent.

34. As to the attitude to the child and the responsibilities of parenthood, I find that each of the parents in their own way present as very committed to the responsibilities of parenthood, although the father has a better understanding of the broader requirements identified by me earlier in this judgment.

35. At the end of the day, and despite my natural preference to have siblings raised together and despite the marginal recommendation of the family consultant, I am of the same mind as the Independent Children's Lawyer and I have concluded that, on balance, the child’s interests would be best served by remaining in the primary care of his father.  As I have said earlier, the father has had primary care for over two years and the child has done well in his care.  He presents as a vibrant and happy child, notwithstanding the difficult circumstances surrounding him.  Of course, I immediately acknowledge the role that the mother has necessarily played in that state of affairs.  All of the indications are that, under that arrangement, the child maintains a very positive relationship with each of his parents and with his sister. 

36. Whilst there are some very significant uncertainties about the father's future circumstances, there are equally question marks about the mother's capacity to continue to provide a certain and stable environment.

37. Whilst her progress in the last two years has been very positive and her conditions may continue to abate, as Dr K observed, the mother does present with a long history of psychiatric and personal struggles.  Dr K is of the opinion that there are likely to be relapses in the mother's mental health, with future episodes of depression, and the mother's personality leaves her exposed to relationship and personal crises in the future.  Manifestations of those problems in episodes in the past have been most serious in terms of her own health and safety and of the health and safety of those in her care.

38. As long as the father is able to remain in Australia, there are no such risks in terms of what the father can provide for the child.  Most importantly, there is, in my mind, no risk about the child’s relationships with all of the important people in his life whilst the current regime is preserved.

39. For those reasons, I propose to order largely in the following terms.

    DRAFT ORDERS DELIVERED

40. And I intend to make other specific orders relating to birthdays, Mother’s Day and the sharing of Christmas Day, which orders will be specified and perfected when they are issued.

    RECORDED  :  NOT TRANSCRIBED

41. In the absence of hearing anything to the contrary, as I say, I will clarify and perfect those orders once I have had the opportunity to reflect upon what I have written and what is currently in place and I will permit further submissions on the detail of the final orders.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate:

Date: