Mott and Donald
[2014] FCCA 2210
•26 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOTT & DONALD | [2014] FCCA 2210 |
| Catchwords: FAMILY LAW –Parental conflict of long-standing – Father with bi-polar and depressive conditions – Father in senior management position in mental health unit – issues of violence during the relationship and occasionally post separation – Mother extremely anxious person concerned about Father’s judgment regarding child’s welfare – Mother teacher at child’s school – Mother has involved the police regarding bruising of the child occasioned by a game – best interest considerations which include the parents avoiding contact with each other – child has good and close relationship with both parents. |
| Legislation: Family Law Act 1975, ss.60CA, 60B(1) & (2), 60CC(2)(a) & (b), 60CC(2A), 60CC(3)(a) – (i), 61DA, 65DAA(1) & (5) |
| Collu & Rinaldo [2010] FamCAFC 53 Diagnostic and Statistical Manual of Mental Disorders (DSM – 5) (Washington DC: American Psychiatric Publishing, 2013) |
| Applicant: | MR MOTT |
| Respondent: | MS DONALD |
| File Number: | CAC 644 of 2012 |
| Judgment of: | Judge Neville |
| Hearing dates: | 30 & 31 October 2013; 26 March 2014 |
| Date of Last Submission: | 23 April 2014 |
| Delivered at: | Canberra |
| Delivered on: | 26 September 2014 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Ms J Lloyd |
| Solicitors for the Applicant: | Jeanine Lloyd & Associates |
| Counsel for the Respondent: | M J Lawton |
| Solicitors for the Respondent: | Infinity Legal |
| Solicitor/Advocate for the Independent Children's Lawyer: | Mrs C Naidu |
| Solicitors for the Independent Children's Lawyer: | Claire Naidu & Co |
ORDERS
The parents have equal shared parental responsibility for the child, X (born on (omitted) 2007) (“the child”);
Subject to the following orders, commencing in the first week of September 2015, the child shall spend week about time with his Mother and Father during school terms, with changeovers to occur after school on Friday and at 5:00pm from the other person’s home on non-school days;
Between the date of these orders and the commencement of the week-about arrangement set out in order 2, the child’s time with the Father will increase from the current four nights per fortnight by one (1) overnight on each of the following dates: 1st December 2014, 1st March 2015, and 1st June 2015. That increase in time is conditional upon the Father providing a report to the Mother and to the head of the family consultants at the Court from his treating psychiatrist which confirms that he has no mental health issues of any note that would affect his parenting of X;
Upon the commencement of the shared care arrangement in September 2015, the Father is to continue to undertake a psychiatric assessment three times per year and after each such review to provide the Mother and the head of the family consultants at the Court with a copy of that assessment. This regime of assessment is to continue until X is 12 years of age, and thereafter, such review (and provision of a report as per order 3 of these orders) shall be twice per year;
The child spend half of each school holiday period with his Father and half with his Mother, failing agreement being the first half of school holidays in odd numbered years with his Mother, and the second half of holidays in even numbered years with his Father.
For the purposes of order 5 above, the duration of school holidays is calculated from after school on the last day of term to before school on the first day of school.
Notwithstanding any other order above:
(a)The child shall spend time with his Father from 9:00am – 5:00pm on Father’s Day and from 9:00am – 5:00pm on Mother’s Day with his Mother.
(b)The child shall spend time with the parent who is not normally residing with for 2 hours on his birthday from after school to 5:00pm or for 4 hours from 3:00pm to 7:00pm on a non-school day.
(c)The Easter break will be alternated between the parents with the Mother having the child in even years and the Father in odd years.
(d)If the child is not normally with the Mother on her birthday, the Mother shall spend time with the child on her birthday for 2 hours on a school day from 3:00pm to 6:00pm and from 3:00pm to 7:00pm on a non-school day.
(e)If the child is not normally with the Father on his birthday the Father shall spend time with the child on his birthday for 2 hours on a school day from 3:00pm to 6:00pm and from 3:00pm to 7:00pm on a non-school day.
(f)The child shall be permitted to telephone the other (non-resident) parent at all reasonable times and each parent shall facilitate these calls.
(g)Absent any other agreement in writing, each parent shall be permitted to telephone the child not more than three (3) times each week (Monday, Wednesday & Friday at 7pm) when X is in the care of the other parent.
Absent any other agreement in writing between the parties, (a) as from the commencement of the school year in 2015, X shall attend (omitted) Primary School in (omitted), (b) neither party shall otherwise change the child’s school without written agreement of the other party (and any school chosen by the parents for X to attend shall not be a school at which the Mother teaches);
Absent any written agreement in writing between the parties, and otherwise in compliance with these orders in relation to any changeover, the parents are hereby restrained from attending the residence of the other parent, or the residence of any partner of the other parent;
The parties shall enrol in, and attend, post separation parenting courses and/or counselling to enhance their communication and co-operation capacities with one another. Evidence of such attendance shall be placed on the Court file;
Absent agreement in writing between them, the parties shall attend mediation no less than once every two months to discuss, to update, and to make decisions in relation to parenting matters concerning X;
The parties shall keep each other advised of up to date contact numbers and addresses;
Both parties are restrained from saying unkind, unpleasant or derogatory things about the other to the child, in his presence or hearing, or allowing any other person to do so;
Each party shall authorise the school or any professional treating the child to inform the other of all relevant matters and provide the school and all treating professionals with the contact details of the other parent;
Each party will notify the other of any illness, injury or significant matter affecting the child as soon as practicable;
The parties shall use a communication book (or email service) which shall record all relevant information about the child’s health or activities schedule, education or wellbeing and shall ensure this communication is polite, business-like and respectful;
Each party shall ensure that the child attends his agreed extracurricular activities and if there is a dispute they shall attend further mediation (in addition to the mediation required by Order 11 of these Orders) to address this issue;
If there continues to be a dispute concerning which activity the child shall attend then the activity shall be chosen on a one for one basis, i.e. the parent who last elected for the child to attend an activity must wait his or her turn and the other parent has the right to choose the activity in dispute;
Both parties are restrained from discussing these Court proceedings, or any other dispute he or she is having with the other parent, with or in the presence or hearing of the child, or allowing any other person to do so;
Nothing in these orders shall prevent the parties making other arrangements from time to time that are agreed in writing;
The independent children’s lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Mott & Donald is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 644 of 2012
| MR MOTT |
Applicant
And
| MS DONALD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting contest that concerns 7 year old X. Shorn of virtually all of the very large number of distractions and needless complications, plus some matters of genuine relevance, the parameters and issues of the contest may be summarised as follows.
The parents are intelligent people: the Father is an occupational therapist who has a very responsible managerial and professional position with (employer omitted); the Mother is a primary school teacher, as it happens, at the same school attended by X. She does not teach him.
In very general terms, there is some history of some mental health issues with the Father. In my view, subject to what is explained later, they are of quite modest proportion and are managed reasonably well, and will be managed further pursuant to the orders of the Court. There is no suggestion that the Mother has any mental health issues, although in the course of the trial she readily acknowledged that she has sought, largely through the use of a counsellor/colleague at her school, assistance to deal with her obvious anxiety about X. As I note a number of times in these reasons, the Mother is a very timorous person, certainly in matters that concern X.
In terms of the substantive contest, at no time was it suggested that this was a “no contact case” vis-à-vis X’s time with his Father. Rather, the Court was faced with a situation where the Father, and the child (as reported by the Family Consultant), wish to increase their time together. However, the Mother consistently put to the Court that she was and remains highly anxious about X spending time with his Father because, in her view, the Father either permitted and or undertook activities that placed X “at risk”. Accordingly, she sought to minimise this risk by keeping or restricting the Father’s time with the child to a relatively modest period, to speak generally, of every second weekend from Thursday night to the commencement of school on Monday morning, and half the school holidays.
The Mother’s anxiety about X and his Father was noted, for example, in the first report of Ms F, dated 20th February 2013, (Exhibit Z1), in the following terms (at para.4.5)
The mother alleges that the father does not show the appropriate level of care for a young child. The mother reported that she has been fearful for the safety of herself and X and stayed in the relationship so she could “control the risks”. She stated that she believes the father is “impulsive” and doesn’t have a good sense of “duty of care”. For example she reported the father took X canoeing without a life jacket at three years of age. It concerns her that “they (the father and child) go camping in isolated places…and remote tracks in the four-wheel drive”.
It is apposite here to note that the Court made parenting orders in March 2013, and notwithstanding the Mother’s anxiety, the parents subsequently amended these orders by consent.
At trial, the Father sought an equal time arrangement. In general terms, and subject to what is said later in these reasons, the independent children’s lawyer (“the ICL”) supported an increase in time that accords with the Father’s position. Again subject to what is said later in these reasons by way of qualification, the family consultant also supported an increase in the Father’s time with X. Moreover, in the course of the trial, the Father confirmed his support, without qualification, of all of the family consultant’s recommendations.
From the Court’s perspective, and as explained in more detail later in these reasons, the Mother did not adequately explain how allowing X to spend time with his Father every second weekend would, so to speak, protect him better than if he spent more time with his Father. At one level, either a child is “at risk” or not at risk. Absent “no contact” (and wrapping in cotton wool or the protective equivalent of it), a child could suffer an accident from spending a very small amount of time with a parent just as easily if the child was to spend very extended periods of time with the same parent. Obviously, increased time will simply allow greater opportunities for so-called risk-taking behaviour to take place. Simply reducing the time will not eliminate risk; it will only reduce it.
Moreover, from detailed observation of the Mother over the not insignificant periods of the trial indicated to me that she was/is a significantly anxious person. Moreover, at times (as noted below) her evidence suggested either or both that she was very highly protective of X, almost to the point of obsession, and that her anxious disposition was a bad combination for someone who was so highly protective. Such protection, taken to an extreme, could be suffocating or at least quite stifling for an energetic child who seeks more and more stimulation. From the evidence, I had the view that as very well intentioned as the Mother’s protective action was, according to observation and otherwise, it was starting to become stifling for X. Indeed, as he grows, her action could ultimately repress X’s naturally adventurous and eager exploration of life, as indicated and remarked on by the family consultant (noted further below).
In my view, as the following reasons make clear, there does need to be a more regular, formal check on the Father’s mental health. This is so notwithstanding that the Father has formal qualifications in related health care areas (he is an occupational therapist). I assume also that the environment in which he works could or would not permit him to continue in the relatively senior position he enjoys if there were any mental health issues that might risk compromising his professional responsibilities.
It is also my view that there needs to be a gradual increase in X’s time with his Father, leading ultimately to a shared care/equal time arrangement between the parties. The evidence makes clear, in addition to my often expressed view during the trial, that from now on it is absolutely imperative that the parties have the least to do with each other as possible, and that when they do interact, it be in a professionally conducted setting, such as with a mediator.
In my view, the parents clearly need help; they do not need more adversarial engagement in Court. For reasons given below, it is clear that some part of the on-going contest between the parties is their inability to see that “difference” in parenting styles, which is patently obvious here, does not thereby mean or translate into “opposition.” Rather, difference is simply difference; it is not (without more) necessarily or ineluctably opposition. However, for many parents, “difference” is perceived and understood as “opposition.” Such is the case here.
Finally, by way of overview, in my view it is important for X to change schools, as noted by the family consultant in her s.62G Report of March 2014 (Exhibit Z2).[1] While-ever he remains at the same school at which his Mother teaches, I could have little confidence that the monitoring of X, and the very unfortunate public contests that have occurred between the Mother and the Father at school when he has come to pick up X, would not continue. Although the Father submitted that the Mother should change schools, such a proposition belies the much easier propositions that (a) it is less onerous for a young child to change to a nearby school, and (b) the Court may take some judicial notice of the likely much greater difficulty for a person to change jobs compared to a child changing schools.
[1] See pars.81 & 82 of that Report.
Procedurally, after setting out the orders sought by each of the parties (and the ICL), these reasons proceed as follows: (a) overview of the evidence of the parties, (b) evidence of the family consultant, (c) consideration of the legislative “scaffold” prescribed in Part VII of the Act, (d) disposition.
Orders Sought
The Father’s Orders Sought are as follows:
1) That the parents have equal shared parental responsibility for the child, X born on (omitted) 2007.
2) Subject to the following orders the child spend week about time with his mother and father during school terms, with changeovers to occur after school on Friday and at 5:00pm from the other person’s home on non-school days.
3) That the child spend half of each school holiday period with his father and half with his mother, failing agreement being the first half of school holidays in odd numbered years with his mother, and the second half of holidays in even numbered years with his father.
4) For the purposes of order 3 above, the duration of school holidays is calculated from after school on the last day of term to before school on the first day of school.
5) That notwithstanding orders 2, 3, and 4 above:
a) The child shall spend time with his father from 9:00am – 5:00pm on Father’s Day and from 9:00am – 5:00pm on Mother’s Day with his mother.
b) The child shall spend time with the parent who is not normally residing with for 2 hours on his birthday from after school to 5:00pm or for 4 hours from 3:00pm to 7:00pm on a non-school day.
c) The Easter break will be alternated between the parents with the mother having the child in even years and the father in odd years.
d) If the child is not normally with the mother on her birthday, the mother shall spend time with the child on her birthday for 2 hours on a school day from 3:00pm to 5:00pm and from 3:00pm to 7:00pm on a non-school day.
e) If the child is not normally with the father on his birthday the father shall spend time with the child on his birthday for 2 hours on a school day from 3:00pm to 5:00pm and from 3:00pm to 7:00pm on a non-school day.
f) The child shall be permitted to telephone the other parent at all reasonable times and each parent shall facilitate these calls.
g) Each parent shall be permitted to telephone the child at all reasonable times and each parent shall facilitate these calls.
6) Neither party shall change the child’s school without written agreement of the other party.
7) The parties shall enrol and attend post separation parenting courses and/or counselling to enhance their communication and co-operation capacities with one another.
8) The parties shall keep each other advised of up to date contact numbers and addresses.
9) Neither party shall say any unkind or derogatory thing about the other in the hearing or presence of the child or permit any other person to do so.
10) Each party shall authorise the school or any professional treating the child to inform the other of all relevant matters and provide the school and all treating professionals with the contact details of the other parent.
11) Each party will notify the other of any illness, injury or significant matter affecting the child as soon as practicable.
12) The parties shall endeavour to use a communication book or email service which shall record all relevant information about the child’s health or activities schedule, education or wellbeing and shall ensure this communication is polite, business-like and respectful.
13) Each party shall ensure that the child attends his agreed extracurricular activities and if there is a dispute they shall attend further mediation to address this issue.
14) If there continues to be a dispute concerning which activity the child shall attend then the activity shall be chosen on a one for one the basis i.e. the parent who last elected for the child to attend an activity must wait his or her turn and the other parent has the right to choose the activity in dispute.
15) That neither party will discuss with the child any dispute he or she is having with the other party and each party is hereby restrained from so doing.
16) Nothing in these orders shall prevent the parties making other arrangements from time to time as are agreed.
The Mother’s Orders Sought are as follows:
1) That the mother and father have equal shared parental responsibility for the child, X, born (omitted) 2007;
2) That the child live with the mother;
3) That the father provide to the mother, on a quarterly basis, a report from a registered psychiatrist demonstrating the father’s compliance with the prescribed mental health medication regime or that, if no such medication regime is prescribed, the father’s mental health is stable at the time of writing the report.
4) That the father complete the following courses and provide the certificates to the mother as proof of such completion:
a) Initial and Advanced Anger Management Skills;
b) Parenting Skills; and
c) Child Nutrition and/or Health Course.
5) That, pending the father’s compliance with Orders 3 and 4 above, the father spend time with the child from:
a) From afterschool Friday to before school Monday in each alternate week;
b) For a seven night block in each NSW School Holiday period;
c) From 5:00pm Christmas Eve to 11:00am Christmas day in even years and from 11:00am Christmas Day to 5:00pm Boxing Day in odd years; and
d) Any other time as agreed upon between the parties.
6) That, in the event that father does not comply Orders 3 and 4 above, the child have contact with the father once per fortnight for a period of two hours supervised by a professional supervision agency;
7) Each is to notify the other of the name of any general medical practitioner, paediatrician or other specialist who treats the child while in that parent’s care and each parent will authorise the general practitioner who treats the child while in their care to discuss medical matters for the child with the other parent.
8) Each parent, within 14 days of the date of these Orders, will authorise the child’s school to provide to the both parents copies of all school reports, any other reports on school progress and behavioural issues and all school circulars in relation to the child.
9) Each parent, within 48 hours, is to notify one another of his or her change of telephone number and/or address.
The ICL position was that, subject to the Court’s findings, she supported the recommendations of the family consultant, which were to the effect (also subject to the Court’s findings) that there be a shared care/week about arrangement in relation to X’s time with his parents.[2]
[2] See, for example, the ICL’s oral submissions, Transcript (26th March 2014) p.28, and her written submissions, filed 23rd April 2014, para.6.
The Evidence of the Father
The Father is a senior clinical manager with (employer omitted). He is an occupational therapist by formal training.
Because of the focus of it in cross-examination, it is as well at the outset to note the following.
In his affidavit, filed 4th March 2013, which was in response to the Mother’s affidavit, filed 7th February 2013, the Father confirmed (at p.10) that he had never been “manic” or experienced “psychotic episodes”. He confirmed further that his diagnosis of bipolar type 2 precluded these symptoms.
Annexures F and G to his affidavit, filed 4th October 2013 (the Father’s trial affidavit) are copies of reports from Dr C (dated 9th March 2012) confirming (respectively) that (i) the Father was fit to continue at work and that he requires no further follow up, and (ii) from Dr M (a psychiatrist), dated 13th March 2013), in which she stated (among other things):
On mental state examination, he is a well-looking man of medium build, who is well presented. He communicated clearly and engaged well in an unguarded manner. His affect showed mild to moderate anxiety consistent with the context of the interview and there was normal reactivity. … there was no evidence of thought disorder. His thought content reflected his current stress at loss of contact with his son, and no unusual preoccupations. There was no suicidality or thoughts of harm to others. There were no features of psychosis. He was alert and oriented. A formal cognitive assessment was not done.
… Mr Mott is a 39 year old man with a past history of mood disorder, but no current evidence of mental illness or mental disturbance. He reports that he is not on any medication currently, but he is willing to consider this if it [is] clinically indicated.
Dr M confirmed that she had not seen Mr Mott prior to the consultation with him on 13th March 2013. In the course of her brief report, Dr M summarised the Father’s mental health history as including “life-long dysthymia, with episodes of depression and of emotional dysregulation and hypomania associated with SSRI medication.” SSRI is a form or class of anti-depressant medication. She also noted that the Father had been diagnosed with Bipolar II.
I mention these matters to confirm that (a) Dr M was given a history of the Father’s medical/mental health history (obviously by the Father) and (b) against that background she made the assessment, limited as it necessarily was. This is also to say that the Father did not appear to hide his history, but also to confirm here that it would/will be beneficial for the on-going check-ups referred to in the orders if the same psychiatrist could attend upon the Father. Alternatively, if such is not possible, the Father’s medical records should be available to his consulting psychiatrist.
To move to the Father’s oral evidence, I note the following.
At the outset of the Father’s oral evidence, he gave the following account of a very recent series of events that involved his time with X, and his involvement with the Mother. It occurred the weekend before the commencement of the trial.
HIS Honour: And – which I’m sure the – part of the question that Miss Lloyd was going to be asking anyway, and I’m sorry to interrupt. Was a reason given why it was changed or why, in the first instance, that there was no time for the Friday/Saturday?‑‑‑On Friday – on Wednesday X had become unwell, and as of Friday afternoon Ms Donald decided that he was still not well enough to come into my care, and each – Saturday morning, Saturday afternoon, Sunday morning – continued to be in contact with Ms Donald to find out if he was – if he could come into my care, and it wasn’t till Sunday afternoon that she agreed for him to come into my care.
I see, yes. Sorry, Miss Lloyd.
MS LLOYD: And during the week before that happened on the Friday, did you assist the mother in relation to taking some time off work to care for your son?‑‑‑Yes.
And what day was that, and how did that happen?‑‑‑Wednesday night at quarter past 10 I got a phone call from Ms Donald saying that X was sick and would I take the day off – the Thursday – to care for him during the day, so she could work, and so I agreed to that. On Thursday morning, on my way – in the morning she – I got a phone call from Ms Donald who said to me she has had a bad night as well, and so she’s going to take the time off, so I wouldn’t be needed, and that she would be – was feeling, you know, run down and sick as well, and that she had to take X to the doctor’s. I said to her. “Well, I’ve already taken the day off work. I’ve cancelled that, you know, and because you’re sick, I’m quite happy to take X to the doctor’s.” And she said “yes”. So I went to her place, and from her place we arranged a doctor’s appointment at (omitted) Super Clinic, then we both – Ms Donald and I both escorted X to (omitted) Super Clinic, and he saw the doctor, then went back to Ms Donald’s, and I stayed at her place with her and X for probably another hour or close on, and then I decided well, she’s home from work, so – so she can stay and look after X, so I will just go to work, and so I left, and then I was – as I – I was in contact Thursday night, Friday morning, Friday afternoon, etcetera, continuously asking “Can I have him?”, “Can he come and see me?”, “Can he stay?”, and each time she declined my request.
Okay. Well, I’ve got a question. When you went to the doctor, did you sit and – how did you get there? Who drove and what happened?‑‑‑We drove in my truck. Ms Donald drove. I sat in the back with X and just monitored him, made sure he had the – the – the bucket so he wasn’t – so if he was sick I would support him.
And was there any issue between you and Ms Donald at the doctor’s or following the doctor’s or anything like that?‑‑‑No. No.
In my view, this exchange showed the parents’ capacity to work together in X’s interests, but also a degree of unpredictability on the Mother’s part in changing X’s time with his Father. It also showed a degree of lack of trust between the parties, including whether the Mother could trust the Father to look after X when he was unwell; lack of trust unfortunately continues to be a feature of the relationship.
While the Mother, unsurprisingly, put a different account or emphasis on such events (which I need not recount here), as a general proposition and unless otherwise noted, I accept and prefer the Father’s evidence and version of events to that of the Mother. This is not to say in any way that the Mother was or is untruthful. Rather, in my view, her anxiety and highly protective disposition in matters relating to X invariably coloured her view of the world in relation to X and what was/is in his best interests.
After outlining his formal qualifications, the Father confirmed that his general responsibilities involved case management of clients/patients with severe mental illness, such as schizophrenia, major depression, bipolar disorders and psychotic conditions. The Father confirmed also that he worked as part of a team that comprised psychiatrists.[3]
[3] Transcript (30th October 2013) pp.19-20. Hereafter, unless otherwise required, all transcript references will be simply “T” followed by the page number.
Without making any formal finding, nonetheless it seems to me that the Court may at least infer that the professional setting in which, and the professional colleagues with whom, the Father works provides a not insignificant check on his well-being. It would be remarkable, in my view, that in such a setting the Father could or would be permitted to continue to work if there were any relevant mental health issues that affected adversely his ability to carry out his professional responsibilities.
The Father confirmed that when he self-harmed in 2011 he was required to and undertook a mental health clearance to resume his work.[4] He also agreed that if one of the patients under his care did not take medication it would be a concern for him.
[4] T 20.
The Father was cross-examined about his mental health assessment in 2012, and in particular, the review of his mental health by the (omitted) Mental Health Service in March 2012. There was no mention of that review in an affidavit filed by the Father on 1st May of that year. It was put to him that he was trying to conceal this review. The Father said that he was not trying to conceal it.[5] Given that Mr Mott acknowledged that Ms Donald has raised issues about his mental health treatment, and that the Father has openly mentioned it, and his various treatments and reviews, I did not at the time, nor do I now, accept that Mr Mott has tried to conceal matters in relation to his mental health.
[5] T 23.
Mr Mott also acknowledged that there have been difficulties communicating with Ms Donald, but also that there have been quite some improvement.[6] He has also attended Ms Donald’s premises at times outside the time provided in the consent orders, which times have been at the request of either party, but mostly at his request. Such times (and as confirmed in Ms Donald’s evidence) have nearly always been accommodated. He has also shown up at Ms Donald’s residence uninvited.[7]
[6] T 24.
[7] T 26.
The Father confirmed that he did not have a current diagnosis of bi-polar disorder, and also that his current employer has not sought or requested that he have any on-going treatment for his bi-polar condition. He said that currently he did not have “demonstrated symptomology” of bipolar affective disorder.[8]
[8] T 29. The Father confirmed that his diagnoses of bipolar disorder had been in 2003 and 2007. T 30.
The Father made reasonably plain that (a) mental health conditions (such as bipolar) do not last “forever” and (b) an assessment of a person’s “mental health condition” is “relative to the person’s presentation at the time.”[9] He also confirmed that his last review confirmed that he was not suffering from any mental ill-health, and that he was considered to be fit to resume work.[10]
[9] T 31.
[10] T 31.
In the course of the Father’s cross-examination regarding his mental health, I asked the following questions of the Mother’s Counsel:[11]
[11] T 32.
HIS HONOUR: Sorry, this is becoming, if I could say, respectfully, awfully circular. We are told by the witness that attached to his most recent affidavit is a copy of one of the psychiatric reviews that was done in 2012. One of my concerns would be is that – again, I stress that it is an observation; it’s nothing more, and I’m always warning witnesses not to jump to conclusions, and I’m trying not to jump to conclusions, but might it be – and you can clarify it in whatever way you wish, Mr Lawton, or just simply leave it for some later stage ‑ ‑ ‑
MR LAWTON: Certainly, your Honour.
HIS HONOUR: ‑ ‑ ‑ if Mr Mott has what might be described as two clear psychiatric reviews that were done in 2012, is it going to be suggested at some stage that those two psychiatric reviews are insufficient to deal with (a) an earlier diagnosis of bipolar disorder? So that’s my first question. And my second question is that if that be answered in the affirmative, does it then follow that if that line is pursued, that the father is assessed by his employer to be professionally and otherwise capable to undertake the care of people with a very wide range of psychiatric and psychological and other conditions, but he’s not able to care for his son adequately for long periods of time? Is that part of the equation or not?
MR LAWTON: No. No, it’s not. What – the issue is trying to clarify the diagnosis and explore the assertion by Mr Mott that he is not mentally ill, and he’s taking care of his mental health, which I will come to in due course, your Honour, based on some other materials that I will put to him shortly.
Later, on the one hand, the Father said that if there was a clinical assessment that required him to take medication he would, but on the other hand, Mr Mott acknowledged that, prior to an incident of self-harm in 2011, he had taken himself off his medication.[12] He had consumed a significant amount of alcohol prior to the self-harming incident in 2011. He confirmed that he made the decision regarding his medication without speaking to his then doctor; such a course, he agreed, would be contrary to what he would recommend to any of his own patients.[13]
[12] T 36.
[13] T 38.
Part of the Father’s medical history is also bouts of insomnia for which he has taken medication.[14] In the past, he has had some suicidal thought; he said that it was a case of his imagination working in the context of the stress he was under at the time, primarily in relation to what he viewed as the potential loss of his son X.[15]
[14] See T 41 & 48-49.
[15] T 42-44.
The Father confirmed that he had self-harmed, he said in spontaneous actions, on three occasions: 1995, 1999 and 2011.[16]
[16] T 46.
The Father’s bipolar II diagnosis was the subject of multiple occasions of his cross-examination. Respectfully, as important a topic as it is, it need not have been considered so many times. The Father’s evidence in relation to it was consistent in content and emphasis, which was to the effect that bipolar II was evidenced by hypomania (not hyper) as in “under.” He was asked repeatedly if this “condition” ever resulted in episodes of mania. The Father consistently denied this to be the case.[17]
[17] T 50.
For the record, so to speak, I simply note here two things. First, I do not recall the Mother (or anyone on her behalf during the trial) putting anything to the Father from any edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM – 5) in relation to bipolar II so as to challenge the Father’s evidence on its symptomology and his experience of the condition. His evidence remained consistent throughout the trial, which was also generally consistent with his affidavit evidence.
Without claiming any relevant expertise, I simply note that in the DSM – 5, the diagnostic features refer to depressive episodes and at least one hypomanic episode. And in the same place, the following is stated: “The presence of a manic episode during the course of illness precludes the diagnosis of bipolar II disorder.”[18] However, in the course of the trial, I noted a brief definition from the “Pocket edition” of the DSM IV of bipolar II which also referred to “recurrent depressive episodes with hypomanic episodes.”[19]
[18] Diagnostic and Statistical Manual of Mental Disorders (DSM – 5) (Washington DC: American Psychiatric Publishing, 2013) p.135.
[19] T 51.
Secondly, all of this is to say that the Father’s evidence was not only internally consistent, but it was also congruent with the DSM – 5 (and earlier editions) to which I have referred.
The Father confirmed that when he has been hypomanic he felt invincible and acted spontaneously.[20]
[20] T 51.
To move to another issue, there was an incident between the parties in February 2013. It was a serious incident (a) in front of and involving the child, (b) it brought little credit on each party – for different reasons, and (c) it could have so easily have been avoided. In very short compass it involved the following elements.
The 2nd February 2013 Incident
At the time of this incident, the general ‘time-with’ arrangements were that X spent 6 nights per fortnight with his Father, which the Mother said “was not a bad arrangement for X.”[21] On this occasion, which was shortly before X started school, according to the Mother there was a contest between the parties about the “time-with” arrangements which resulted in the Mother proposing, through her lawyers, that the Father’s time be reduced to every second weekend when X started school. This was also in a context where the Father was then living in (omitted) and X’s school was in (omitted), a distance of approximately 80 kilometres and a drive of approximately 1 hour.
[21] See the Mother’s affidavit, filed 7th February 2013, para.5.
The Father telephoned the Mother to ask if he could spend some time on the following morning, being a Saturday. The Mother agreed. It was further agreed that the Father would pick up the child from the maternal Grandmother’s house and return X to the Mother around 1pm that afternoon.
Later in the morning, the Father called the Mother to say that he had driven back to (omitted), that he and X had things to do and that the child would not be returned to the Mother until 2pm the following day. The Mother said that this was not acceptable and that she was “coming over.” The Father said that she could visit but not take X home. The Mother also deposed (at para.9) that she said to Mr Mott that she wanted X home on the Sunday before school commenced so that he could pack his bag and have a good night[’s] sleep “in his own bed.”
The Mother also said that the Father had previously said to her that if he did not get his “six nights per fortnight” he would not bring X back to her. And, she said, she telephoned the Father numerous times to bring X back home but there was no answer.
The Mother first went to the police in (omitted) to seek their advice, essentially about “recovering” the child from the Father’s residence, which was in sight (and obviously easy walking distance) of the police station. According to her, the police said that because there were no orders in place there was nothing they could do. She confirmed that they told her to “go home.”[22]
[22] Mother’s affidavit, ibid, para.10.
The Mother said, and the Father did not deny, that the Mother went to the Father’s residence and almost remonstrated with him to allow her to take X home because he was to start school on the following Monday. The Father refused. The Mother picked up X, she says, to give him a hug; the Father told her to put him down. When she refused, and while she still held X, the Mother said that the Father “threw her to the ground” and grabbed her around the neck, with such force that she could not breathe. Because she was still carrying X, she fell on top of him, bumped heads with him, and that the child was screaming.
In a somewhat discordantly drafted and seemingly chronologically inaccurate paragraph, the Mother continued:[23]
The next day, X said to me “When you were on top of me, Daddy was pulling me out by my leg.” I said to him “Did you get hurt anywhere else?” and X said “He hurt my arm and I have a scratch on my leg from being pulled on the grass.[”] The Applicant [Father] pushed me, pulled my hair and choked me.
[23] Ibid para.12.
Presumably the allegations referred to by the Mother did not take place on “the next day” as deposed at the beginning of the paragraph.
The Mother said that she received bruising as a result of the incident, and that X sustained a cut lip. The Father, she said, returned X to the Mother at 2pm the following day, as he had said. The Mother filed a Form 4 as a result of this incident.
In his affidavit, filed 4th March 2013, the Father responded to the Mother’s account of events of the February 2013 incident. Summarily, he said (at paras.13-18)
(a)The Mother never discussed with him having X back home in order to prepare his bag for school, and in any event, the Father had always returned X by 2pm Sunday, which he observed was “plenty of time” to pack his bag for school the next day;
(b)The Father confirmed that on 29th January 2013 he had said to the Mother that if she kept X from him then he would act to keep the child for six nights;
(c)Upon the Mother arriving in (omitted) on the day in question, the Father said that the first thing she did was to call him to ask if she could take X for a milkshake. The Father refused and warned the Mother that if she came and caused trouble he would call the police, to which the Mother responded by saying that she would go to the police herself;
(d)While the Mother was at the police station, the Father said that Constable (omitted) called him. He confirmed to the police officer that (i) X was safe, and (ii) X would be returned to his Mother the following day in accordance with “the usual arrangement.” The Father also deposed that after the incident with the Mother, Constables (omitted) and (omitted) informed him that they had advised the Mother not to go to the Father’s house and cause trouble;
(e)The Father (supported by his partner in her affidavit evidence) confirmed that the Mother walked from the police station (she did not drive), and at no time said the words claimed by the Mother about taking X home to enable his preparation for school;
(f)There was a less than cordial exchange with between the parents about taking/not taking X home. The Father said that, rather than a “hug” with X, the Mother picked him up and started to walk away with him, even though the Father continued to ask the Mother to put him down and “don’t do this to him”;
(g)The Father denied throwing the Mother to the ground or grab her round the neck. He said that as he was attempting to restrain her from taking X, the Mother’s weight dropped and she collapsed to the ground on top of X. The Father urged/yelled at the Mother to get off the child, and when this did not happen, he took hold of her shirt and arm with a view to rolling her off the child. When this was achieved, he took X inside his residence;
(h)The Father checked the child for injury later in the afternoon, and confirmed that, even though X said initially that he had hurt his arm, the child later said it was “fine.” The Father confirmed that after “the incident” X continued to play up a tree at his residence without any restriction;
(i)The Father denied that he “pushed” or “choked” the Mother. He said he did not see any signs of injury to the Mother, nor was there any sign of injury to X. Indeed, he said that he took photographs of X approximately 1 hour after the incident, and again of him on his first morning at school. On neither occasion was there any evidence of him having a split lip, as alleged by the Mother;[24]
(j)Mr Mott said that in discussions with X on the Sunday when he was driving him back to the Mother’s residence he said that he did was wrong, that he should not have touched X's Mother, but that he did it to stop her from taking him away. The Father further deposed that he asked X if he wanted to have “equal time with both parents” to which X replied “yes.”
[24] Exhibit A is two photographs taken by the Father the day after the said incident. There is no indication of there being any cut on X’s face (including his lip) in those photographs.
The competing accounts of the February 2013 incident just outlined provide the background for the further cross examination of the Father.
The Father confirmed that, in the course of the incident, he restrained the Mother by holding her “in various positions.” Initially he held her by the shirt. He was taken through the “holding” or “restraining” of the Mother in fine detail.[25] He confirmed that he was seeking to restrain the Mother from moving away; he also confirmed that he held her by the hair at one stage.
[25] T 51 – 55.
The Father agreed with the proposition put to him by the Bench that his actions towards the Mother could be described as “disproportionate force”. He also said that he was “very regretful for what happened”, in fact “horrified with what happened”, and that he wrote a “sorry card” to the Mother three days later.[26]
[26] T 55.
He confirmed that earlier in the relationship with the Mother he had punched her, and on that occasion the Mother was holding X. He said this event took place approximately six years earlier. His action then, he agreed, was impulsive. He was on medication at the time. He said that the incident where he punched the Mother was in 2007 and in circumstances where the Mother had been hitting the Father in the head.[27]
[27] T 58.
There was another occasion, the Father said, when he pulled the Mother’s hair; there was no argument taking place at the time, but rather that the parents were “always on tender-hooks”, seemingly, in part at least, because the Father (at that time) was (in his words) unwell, “quite edgy and quite vulnerable.” He said that there was a lot of hostility “a lot of the time” during the relationship when the parties were together.[28] Again the Father said that this incident took place in the second half of 2007. He said that there were never any charges laid in relation to any “incident” between the parties.
[28] T 59.
Regarding the parents’ relationship since they separated, the Father said:[29]
HIS HONOUR: Can I ask you this? As I hear your evidence in relation to your relationship with Ms Donald, in general terms it seems to have been, from what I hear, a relationship of significant tension?‑‑‑Yes. Certainly against - certainly - it certainly it has - it has been over the years, yes.
But, is it fair to say - please tell me if it’s not - that since you’ve separated from Ms Donald that, over some period of time, that a number, if not many, of those tensions between both of you have dissipated, or that they’ve lessened? Or how would you describe it?‑‑‑It certainly - certainly the - how would you describe? We - the - the - we - we are able to more amicably work with each other. There has certainly been, you know, some conflict over the time, but it’s not escalated - certainly on my part anyway, escalated to anywhere near those levels. And we - we ..... six years to that time as well to those events. Yes, we have antagonism. We have - we have - we have disagreements that - that end in - in arguments, certainly. But I think it’s certainly reducing and with a lot more productive - productive negotiation going on than there was.
[29] T 61. The parents separated in January 2010. See T 71.
And a little later, the Father commented:[30]
[30] T 62.
… a lot of the antagonism has been about - has been about - and I’m - in my opinion has been assumptions made by the other party about making decisions about what to do and what can be done. I think - I think if the orders are - are clear, that will firstly help to reduce that. I mean the basis of the conflict really is about decisions around X. Like, Ms Donald and I generally get all right, I believe. It’s the conflict, 99 per cent of the time, is around decisions regarding X, or the disagreements. The - and so one, I think if the - the - the expectations are clearly defined, that will remove a lot of it. Secondly, and I have put this to Ms Donald in the past, the - the - and including the - the response to the psychiatrist’s assessment and the psychologist’s assessment, I put it to her then, the need for us to come and go and speak to someone, see someone about some sort of a - a training or some sort of a - not - some sort of a communication training so we can have clearly defined expectation on how to do these things.
HIS HONOUR: So you wouldn’t have any objection if the court was minded to make an order that - you know, to both parties ‑ ‑ ‑?‑‑‑Not at all.
‑ ‑ ‑ undertake, say ‑ ‑ ‑?‑‑‑Not at all.
‑ ‑ ‑ various kinds of, say, a post-separation parenting course and those sorts of things?‑‑‑Not at all. And I have indicated that formally and informally. I’ve got no qualms about that. I have - I detest the conflict. It’s horrible living like this. So, no, I’ve got no problems with that at all.
In answer to questions from the ICL (and again by the Bench), the Father said:[31]
MS NAIDU: You just said then that you hate - hate living like this. What do you mean? Living like what?‑‑‑I hate living on - I mean the feeling from my perspective, and this is of course my - my - my life I have to live. Continuously being paranoid that - that I’m going to get attacked by Ms Donald.
HIS HONOUR: Sorry. And so when you say “attacked”, am I right in assuming that you’re not referring to being physically attacked ‑ ‑ ‑?‑‑‑Not physically. No, no, no, no. But reprimanded and criticised for - for what I might do with my son. It could be repeated, you know, like - like yesterday afternoon of - I got a phone call from my - from Ms Donald, “Why does this - why does this happen? Why - why - why” ‑ ‑ ‑?‑‑‑
[31] T 63.
In the same vein, the Father said that he was “constantly paranoid” about what was going to be held against him. He acknowledged that just as he felt constantly under pressure that the Mother may feel similarly stressed.[32]
[32] T 64.
The Father said that one of the areas of stress between the parties (from his perspective, obviously) is that the Mother feels as if she is the “primary carer” and that she can make parenting decisions without reference to the Father. He said that an order for “shared care” will enable and facilitate the parents to make decisions together, rather than, in the Father’s eyes, the Mother making decisions unilaterally. He also said that there is nothing really that remains “unresolved” between the parties, except for the number of nights that X spend with his Father.[33]
[33] T 65.
Mr Mott said that his move from (omitted) to (omitted) was to enable him to spend more, and more easily accommodated, time with X. He said: “My son comes first.”[34] Indeed, he said that he can (and does) work longer hours when X is not with him, which then enables him to spend more time with X on his allocated “week.”[35]
[34] T 69.
[35] T 69.
The issue of the Father’s mental health was canvassed also by the ICL. The following exchange is relevant in this regard:[36]
[36] T 74.
Is it possible that the symptoms of bipolar will come back?‑‑‑It is possible. Yes, it is possible.
And what places you at high risk of those - of those symptoms coming back?‑‑‑Well, the - for me, personally. The greatest - the greatest precipitant of mental illness is anxiety and stress. And that’s - you know, ironically I’ve been through the greatest period of stress in my life.
Which is?‑‑‑Through this ‑ ‑ ‑
This court process?‑‑‑ ‑ ‑ ‑ court process. It’s - you know, it’s been a nightmare. And that is the biggest - the - the two things. There’s two things. One is stress, and two is - is - yes, is alcohol and - and alcohol use. And - and both those things I’ve managed appropriately.
In terms of the frequency or regularity of mental health checks, based on the Father’s professional experience, he offered the following:[37]
[37] T 75 – 76.
HIS HONOUR: What would you say, just in general terms, from your clinical expression, what would you say would be a reasonable degree of frequency for someone to see a psychiatrist, for example?‑‑‑It depends on the - on the condition.
Of course. I understand?‑‑‑When a - when a person is kind of through a - when they’re stable and they have a severe chronic mental illness, which I don’t have, you - you would probably say three to six monthly. The most - I mean when they’re more acute, you would be up to weekly kind of thing.
Of course. I understand that, yes?‑‑‑Someone - someone in my - in my position, you would certainly want to have, you know, if - six month would be reasonable, I think. Particularly if they’ve got a GP, a regular GP, which I can arrange as well to see a regular GP.
Because could I just suggest, it’s not a settled view. But leaving aside whatever may or may not comfort or assist anyone else in the courtroom, ultimately I’m the one who has got to make the decision that’s in X’s best interests. You understand that?‑‑‑I do.
Could I just flag that I’m rather more disposed that there would be some regular check ‑ ‑ ‑?‑‑‑Mm.
‑ ‑ ‑ that was put in place, while I would also probably accept that your qualifications and experience give you a very significant edge on, say, the rest of the population in checking their own mental health, that can also be a blessing [or] curse ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ I suspect?‑‑‑Yes.
Next, I suspect also that being in the work environment that you are, that there would be some sort of semi, but obviously for formalised, assessment of colleagues so that if anyone was seeing that things were not going well that someone in your workplace ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ would be more likely than not to say something. But all that aside, I can’t, as it were, depend upon those sorts of things. And therefore, in X’s best interests, and can I say in the parents best interests, because in assessing X's, I also have to take into account, and I want to take into account, the best interests of the parents?‑‑‑Mm.
Because both of you are the most important people in his life. So both as a protection ..... and it’s not said in any sort of guilt be-laden way, of course ‑ ‑ ‑?‑‑‑Yes.
… as a protection for X, but it’s protection for both parents so that it’s as much protection for Ms Donald as I said as protection for you. So that in terms of whether it’s accusation, risk, monitoring, as I’m sitting at the moment, and I know I haven’t heard everything, I’m rather more disposed to have in place some sort of regular check of the kind that has been discussed?‑‑‑And I’m - I’m quite happy to do that. Certainly.
I note the following by way of summary from the Father’s two affidavits, filed 4th October 2013 and 24th March 2014:
(a)In the first of the affidavits referred to the Father said that he has been in a [non-residential] relationship with Ms R since 2012; the Father, and Ms R (in a separate affidavit filed 10th October 2013), say that Ms R has a good relationship with X (she has two children, aged 6 years and 22 months from a different relationship);
(b)The Mother asked the Father to assist her in conceiving another child in 2011(as noted below, the Mother confirmed this in her evidence);
(c)At pars.15.1 – 15.15 and 16.1 – 16.26, the Father recounts a significant range of “extra time” which the Mother has facilitated between the Father and X between June and August 2013, and a similarly significant number of issues the parties have been able to agree on between June and September 2013;
(d)At pars.18.1 – 18.38, 19.1 – 19.8, 21.1 – 21.4, and 22.1 – 22.12, Mr Mott narrates the occasions, decisions and other matters where, he says, the Mother has either not consulted him, or not paid sufficient attention to X’s best interests, and where X has expressed his desire, among other things, to spend “equal time” with his Father.
(e)In the Father’s final affidavit, filed between the first two days of the trial and the resumed hearing in March 2014, the Father detailed, among other things, his account – by way of something akin to a pleading response to the Mother’s affidavit filed 18th March 2014 - of another incident of contest involving the Mother at X’s school. His affidavit briefly noted a health issue regarding X, the Mother’s response to it and his knowledge of it.
(f)The final matter acknowledged by the Father in his last affidavit is that adjacent to some artwork done by X, which was stuck on the wall of his residence, was a poem that contained an offensive/pornographic sentence. The Mother properly demanded that the poem be taken down; the Father properly agreed. It should not have been able to be read by X, whether or not he understood (either in part of in full) what it said.
The Father’s partner, Ms R, was very briefly cross-examined in relation to the February 2013 incident. The only matter of note to record here is her evidence to the effect that she recalled Mr Mott shouting and speaking loudly to Ms Donald, and that everything happened so fast she did not see all of the matters deposed to by the Father and the Mother. Among other things, she also said that she did not see everything because she was still watching her daughter playing up a tree, where X had also been playing.[38]
[38] T 79.
The Mother’s Evidence
At the outset, the Mother agreed that Mr Mott has been invited to dinner at her place on a number of occasions recently, which she says occurred in circumstances where the Father has “dropped in” to her house on his way home from work to see X unannounced, and because her apartment is small with the front door close to the dining table, and because X had seen his Father, she invited him to stay for dinner.[39]
[39] T 82.
On one particular occasion, after dinner, the Father stayed further to bath X. She confirmed that she did not object to this.[40] She also confirmed that this occasion was “an amicable moment.”[41]
[40] T 83.
[41] T 84.
In terms of the parenting relationship, the Mother said that she still held concerns about what she called “safety issues” with the Father, which she had difficulty speaking to Mr Mott about, issues such as driving the car without proper restraints, and things generally which, in her view, put X “in a moment of unsafe nature.” She also had doubts about the Father honouring what he had agreed to in discussions with her.[42] She agreed that Mr Mott would not willingly [or deliberately] put X at any risk, however, the Mother said that the Father does not see that his actions, at times and in her view, put X at risk. The Father views his actions as being “okay.”[43]
[42] T 84.
[43] T 85.
The Mother also agreed that the poor communication between the parties is a problem. She confirmed that, just as she is committed to doing what is in the child’s best interests so too is Mr Mott. However, in my view, the impasse between the parties was summed up by the Mother’s following comment:[44]
… do you believe Mr Mott has the same commitment?---I believe that he does have that same commitment, but I don't believe that what he chooses to do he sees as inappropriate.
[44] T 85.
The Mother confirmed that for all change-overs between X and his Father, which occur at the school and because she is a teacher at the school, she is always present for them.[45] In my view, given the history of unpredictability between the parents in their relationship, the constant attendance of the Mother at changeovers is invariably courting disaster; it is a recipe for, or an accident waiting to happen. Indeed, the Mother confirmed that this has caused problems, and the parties have become “heated” in their “engagement” at X’s school.[46]
[45] T 86.
[46] T 86 – 87.
In relation to X’s initial enrolment at school, the Mother said that she did not put the Father on the enrolment form at the time because she did not [then] know where he was working and “because of his mobile phone situation.”[47] Respectfully, given (among other things) how frequently the parties speak with each other (the evidence was/is that sometimes they speak up to five or six times per day)[48] the Mother’s evidence in this regard was, in my view, rather disingenuous. And given how very particular she is in relation to all things involving X, it would be passing strange, or simply a deliberate refusal to make relevant inquiry, that she did not know contact details of the Father.
[47] T 90.
[48] T 86.
In relation to “choice of school”, the Mother confirmed that (omitted) School is still her preferred or first choice of option school for X to attend. She also said that if X did not attend his current school, she would prefer him to go to (omitted) School in (omitted).[49] The Mother also confirmed that she has discussed with the Father X attending (omitted) School. On this issue more generally, the Mother said:[50]
[49] T 90.
[50] T 91.
HIS HONOUR: …. And have you discussed with him [the Father] X attending (omitted) School?‑‑‑Yes.
And do you say that he is or is not amenable to X changing schools?‑‑‑I would have to ask him again his opinion on X changing schools. I would assume that he would have the same reservations as me in a child doing one year at a school and the changing where he has established his friendship circle. But a (religion omitted) school is where all of my family have gone to school and that would be my first option, and he has not displayed to me any negative thoughts about his son also going to a (religion omitted) school.
And why do you say X, being the young fellow that he is, why would he have been able to express a view of opposition of going to (omitted) School? It’s really just for my information?‑‑‑Perhaps he just wanted to go to the school where mummy was.
A little later in her cross-examination, the Mother responded to the following comment from the Bench:[51]
HIS HONOUR: … would you see any and all of those things as being interrelated, namely a change in his behaviour, his clinginess to you, happening at a time when his time with his father was reduced?‑‑‑And also it happening after the events prior to going to school, yes.
[51] T 92.
In the latter part of the Mother’s oral evidence at the conclusion of the first day of the trial, there was much focus on what the Father packed for X’s lunch (and how X did not eat what his Father gave him for lunch), the contention that for a significant number of parenting issues, the Mother’s regular resort was to legal advice and a letter from her lawyers to the Father about what-ever the latest issue was, and (in my view) more pertinently, a discussion about various incidents where, in the Mother’s view, the Father has not exercised proper care in relation to X’s safety, such as climbing on to a roof of a shed. A copy of a photograph of the relevant shed is Exhibit B.[52] The Mother also said she was concerned about an incident, when X was about three or four years old when his Father drove him a short distance, with a seat belt, but without a “booster seat or car seat.” She confirmed that there have not been any similar incidents since.[53]
[52] See T 98 – 99, and the evidence of Mr Mott at T 16 ff.
[53] T 99.
In relation to the Father’s move from (omitted) to (omitted), the Mother said:[54]
[54] T 100.
Do you agree that it was in X’s best interest for Mr Mott to move from (omitted) to (omitted) at the beginning of the year, so that ‑ ‑ ‑?‑‑‑I don’t think it was not in his best interests ‑ ‑ ‑
Well, was it ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ for his father to move close to him.
But it was positive for him to move from (omitted) to (omitted) to be close to X’s school, wasn’t it, for X?‑‑‑Yes.
Yes. Okay. And similarly it was in X’s interests that Mr Mott changed from his employment in (omitted) to the ACT area so that he could be closer to X’s school and X’s home?‑‑‑Yes, that’s positive.
Yes. And do you have any qualms about Mr Mott’s inability to provide for X’s emotional or intellectual needs?‑‑‑Emotionally, yes.
The inability of the Father to provide for X’s “emotional needs” was said by the Mother to arise out of an incident when the Father was said to have sworn at X for spilling coffee on a new carpet. There was no exploration of whether the child was drinking or simply carrying the coffee.
This, and similar evidence, might be read, in my view not unreasonably, as suggesting that the Mother is (a) slow to give credit to the Father, (b) highly protective of X, and (c) highly critical of the Father in almost all respects.
The Mother did not agree when it was put to her earlier in her evidence that X might be “manipulating” her.[55]
[55] See T 94.
In the continuation of the Mother’s evidence on the second day of the trial, the subject of the emotional needs of X was pressed. There was, for example, the following exchange with the Father’s experienced solicitor/advocate:[56]
[56] T 110.
In relation to X’s emotional needs, when he had a disruption in his relationship with his father at the beginning of the year, irrespective of how that was caused, did X suffer any detriment, in your view?‑‑‑Yes.
And what was that?‑‑‑He was upset.
And, in fact, that upset is part of the reason why X insists if Mr Mott comes around to deliver a bike or something like that, that he stay, because he’s pining for his father, isn’t he?‑‑‑X doesn’t always insist.
He insists a fair amount. Yesterday your evidence was that if X sees his father at those times, you have to placate X by ‑ ‑ ‑?‑‑‑No. What I said yesterday was that I say yes to X staying so that X doesn’t get upset. It’s my decision.
Giving all allowances for the Mother in her oral evidence, her nervousness and general anxiety in particular, I found her evidence to be less than precise and less than helpful. The following exchange was somewhat indicative of her evidence:[57]
[57] T 111.
In relation to that, what happened in respect of that, it wasn’t based on what Mr Mott was living or working, because he had already told you that he had made arrangements to move to (omitted)?‑‑‑No.
So you deny that he hadn’t told you in December 2012 that he had arranged to give up the (omitted) house and move to (omitted)?‑‑‑I can’t remember exactly when he told me but I filled in the application to go to school prior to knowing that he was moving to (omitted).
But you didn’t stop X from seeing his father on the same regular basis until he was about to start school and you just ‑ ‑ ‑?‑‑‑No. That’s ‑ ‑ ‑
And you just said that it was impractical, the arrangement, of the 3, 4, 6, 8 thing because X was starting school but, in fact, it wasn’t, because it was more practical because Mr Mott had changed his employment and was moving to (omitted)?‑‑‑He hadn’t changed his employment at that time. He changed his employment after X had already begun school.
Begun school?‑‑‑Mm.
But he gave evidence that he moved to the ACT health system in June 2012. So he had well and truly started with (omitted). Do you remember that evidence yesterday?‑‑‑I’m - I’m trying to recall it, yes. Yes, you are right. He had changed work but he hadn’t changed living.
But you knew he was about to change to (omitted)?‑‑‑Mr Mott didn’t even give me his address of the place that he had moved to. He had already moved to his new residence prior to telling me where he lived. He also had arranged to stay at his brother-in-law’s house in Canberra and that was the place that I thought he was going to move into. When he moved into the place in (omitted) in (omitted), he had already gone and seen - and signed the lease and filled in all of the requirements to rent that property prior to telling me what he was doing. I found out afterwards.
And you found out. He took you to that house, you and X, he took you to that house in about the first week of February, didn’t he?‑‑‑After X had started school.
Yes, that’s right. But within the first week or so of February, you inspected that house with him, didn’t you?‑‑‑I didn’t inspect the house; he showed me where he lived, yes.
In my view, evidence of this kind showed that the Mother was (a) a person careful to try to place the Father in a less than generous light, (b) generally, less than straight-forward in her evidence (which may, of course, be more a function of her anxiety than anything else), and (c) a very cautious and guarded witness who often had difficulty in answering uncomplicated questions. Indeed, when (as in the example just given) her evidence was shown to be incorrect, she became rather flustered – a not uncommon occurrence with witnesses generally in such circumstances. Indeed, to get a straight-forward answer from the Mother was a very difficult exercise, which lengthened her time in the witness box considerably. At times, she was a very difficult witness. Nothing particularly turns on this observation except that she was her own worst enemy in eliciting her evidence.
The Mother returned to her theme of “safety” regularly. For example, the following exchange took place early on the second day of her evidence:[58]
[58] T 112 - 113. See further the discussion at T 113 – 114 and again T 136 – 137.
Now, if his Honour were minded to make orders in accordance with Mr Mott’s application, you would still be motivated to do your best for X, whatever the orders were?‑‑‑Yes.
And if his Honour didn’t make the orders sought by you, what would be missing from X’s life, do you think, if you didn’t get the orders granted?‑‑‑It’s not a matter of what’s missing from his life; it’s a matter of safety.
So safety would be missing from his life?‑‑‑Aspects of safety, yes.
And ‑ ‑ ‑
HIS HONOUR: Such as?‑‑‑For example, this morning, when X was getting ready for school, when he gets up in the mornings at his father’s house, he watches DVDs prior to going to school, which I’ve had a number of conversations with Mr Mott about the child waking up early and sitting and watching DVDs. Now, although this isn’t a major safety issue, the example I’ve just come up with right now is - is more of a protection and care issue. The - the avalanche of effects from that, if the child is tired and goes to school tired, that will impact on his schooling, especially being the commencement of the week when most of the activities are implemented first and then consolidated towards the end of the week. Second of all, if the child is - if X is tired and grumpy and his behaviour reflects so, then that will have an impact on Mr Mott’s reaction to X being tired, speaking inappropriately to him or - or getting cranky at him for reasons that are not naughtiness, they’re just reasons that - that a child behaves in a certain way due to the influences that they’re experiencing, such as being tired.
So what’s the difference between - obviously these are my words - the kinds of risks that you’ve described occurring over three days with his father, which is what you propose, as opposed to being over five days or seven days, whatever?‑‑‑And that has been the biggest problem for me because Mr Mott does love his son and his son does love him and that is why I have never gone for no contact at all. But even when I send X for two or three days, I have the same fears. X gives me stories of where they go canoeing and, “Daddy capsizes the boat on purpose because it’s fun,” and X is not enjoying that experience at all. So I don’t know what to do, because I am in this state of anxiety and fear for the safety of X, irrespective of how many days he goes.
Hence my question?‑‑‑So what is my other option? No contact?
Is that going to be in X’s best interest?‑‑‑No, which is why I’m trying to minimise the harm.
Do you accept that parents can have obviously very different approaches to parenting?‑‑‑I do. I do and I’ve said from the onset that if it is just a different style of parenting, that - for example, they went swimming on - please excuse my memory - Friday afternoon after school. Now, that’s not something that I would have done because in my opinion, the weather was too cold to go swimming, but he and X went swimming. Now, that was just a difference in parenting, that was no safety issue so I’ve made no comment in regards to that activity, because the issues that I don’t think are not in X’s interest for safety reasons, they’re the ones that I will comment on. But the ones that are just differences in parenting, I don’t comment on.
In my view, this exchange suggested, if not confirmed, the Mother’s understandable concern (up to a point) with X’s safety, but also something of a fixation on it as well as a difficulty, on her part, in virtually catastrophising it and or failing to distinguish (or to distinguish properly or fairly) the degree of “danger” in the watching of DVDs before school and deliberately over-turning a canoe – as alleged.
Another difficulty that emerged in the Mother’s evidence was her practice of consulting widely about all issues to do with X. For example, she said:[59]
[59] T 115 – 116.
HIS HONOUR: … if I was to order a graduated increase in time with the other checks and balances about health checks, etcetera, etcetera, how are you going to emotionally cope if I was to make that order? I’m not saying that I will, but if I was to do that. Because if your levels of anxiety are so poignant as they appear to be at the moment with three days of X in his dad’s care and larger blocks in the school holidays, how are you going to cope with what you say are going to be an increased range of risks because of the increase in time?‑‑‑Well, I’ve had to cope with it so far.
Is it just a case of, “Well, I will just grin and bear it,” or whatever and then ‑ ‑ ‑?‑‑‑No.
‑ ‑ ‑ if something happens or what?‑‑‑No. I - I talk to as many people as possible who are the appropriate choices at the time to discuss the matter. I have spoken with a number of professionals who are child counsellors and child psychologists to ask them to give me some assistance on which things to let through to the keeper and which things to - to say headstrong about. I have spoken with people who - psychologists who have experience in working with children from separated families. I have rung Child Services a few times. I have rung - I can’t remember their names, but I’ve rung the Domestic Violence - there’s a - there’s a few different people and telephone numbers that I have regular phone calls from to check up and see how things are going and to also assist me in - in my feelings at the time so that that can be a positive to X and my relationship with other people in X’s lives. So I’ve set up a number of things for myself to assist me in - in my unfortunate matters at the moment.
This and other evidence, in my view, showed the Mother’s almost relentless attempt to micro-manage X’s life, even when he is with his Father. Her intentions are protective; but they must, at times, almost be suffocating. And her actions impact on her own well-being by increasing her anxiety. Indeed, I put it to the Mother that one could get the impression that she was “unduly anxious.”[60]
[60] T 117.
For example, on a trip between X and his father to (omitted), the parents had a discussion about the care of X because the Mother was concerned about Father and son camping ‘on the side of the road.’ The Mother insisted that there be a mobile telephone taken so that X could telephone his Mother every night; but the Father did not purchase such a phone for X. This was in circumstances where the Mother acknowledged that there was not always mobile phone coverage at or en route to (omitted). But the Father still ensured that X regularly telephoned his Mother.[61] The dissonance and almost obsessional need for contact and control by the Mother was plainly evident.
[61] T 116 – 117.
The Mother noted how sometimes things were good for X and at other times they were not, such as him having an extra day with his Father (when he was younger and his Father was living at (omitted)). She said that X was telling her how he did not like the drive from his Father’s house to his Mother’s.[62]
[62] T 118.
Not for the first time, I had the quite clear impression that this young boy has, at times, as it were “played” both sides of the street, meaning that he has “played” both parents. Of course, this is a not uncommon occurrence in children as they vie for affection, attention and particularly security from their separated parents, but invariably with less than happy consequences.[63]
[63] For further examples, see T 158.
And again, Ms Donald’s concern, if not almost obsessional angst about safety (among other things) came to the fore in the following exchange:[64]
[64] T 119 – 120.
But you would very content if you were able to tell Mr Mott exactly what to do any time he parented X?‑‑‑No, I just want to have conversations with him about safety aspects, not about individual choices and decisions on basic parenting.
Right. Do you agree that X’s current development does reflect his ability to live effectively across two households in different household arrangements?‑‑‑Well, I’m concerned with his behaviour when he returns and I’m concerned with some of the stories that he tells me when he returns. But other than those two issues, everything else is okay.
So if X was to swap households on a week about basis, one of the benefits that he might get would be less changeovers and less disruption to him. Do you think that might be a benefit to X?‑‑‑He could still achieve that but not being week about. Could still be a one - one change per change.
All right. So block time ‑ ‑ ‑
HIS HONOUR: Sorry, I don’t understand that?‑‑‑Well, at the moment, he’s swapping twice in the fortnight, because he’s staying the Tuesday night and then he’s staying the alternate weekend. So when X is changing, he talks to me about his tummy aches when he is changing, so it doesn’t - so I would like just one change in the week so that I don’t need to place him that position twice a fortnight. But it doesn’t have to be week about to do that; it could be less - less than that.
The Mother’s inability to perceive the need to change behaviour so as to avoid the risk of contest with the Father was also regularly evident, such as highlighted in the following discussion (emphasis added):[65]
[65] T 120 & 121.
HIS HONOUR: Sorry. This is one of the reasons why I spoke to the lawyers. Respectfully, it seems to me as I’m hearing it more and more and more, you and Mr Mott have to stay apart. You have to minimise your engagements or your entanglements more and more …
HIS HONOUR: You’ve been on duty - sorry, can I ask, for how long have you been on the Monday morning playground duty? All year?‑‑‑Yes.
And up until this discussion today, you haven’t seen it as being a useful course to take to avoid the possibility of “risk”, to use your words, risk of you and Mr Mott having some sort of contest, for you to change your roster so that there’s not that possibility?‑‑‑I have put two mechanisms in place for that.
Sorry, can I ‑ ‑ ‑?‑‑‑Sorry.
Can you answer my question. Is it the case that until this discussion, you haven’t taken any step to change your playground roster so that on the Monday morning, there was no chance of you and Mr Mott coming into contact? Is that a yes or a no?‑‑‑No, I’ve done other things.
So the answer is no ‑ ‑ ‑?‑‑‑No.
‑ ‑ ‑ but you’ve done other things?‑‑‑Mm.
Thank you.
In her “evaluation” ([67] – [81]), Ms F opined that the Father should have regular mental health reviews. She also said that comments from the Father (e.g. his “rules about crying”) suggest that he lacks [some] insight into X’s emotional needs and an age appropriate manner of responding to his displays of emotion.
Quite properly in my view, Ms F observed that both parents have very different parenting styles. She commented that they appear unable to parent co-operatively. This was followed by a detailed comment, thus (at [74]):
From X’s comments and observation of him during this assessment he values the time he spends with his father and that the father meets the needs that are generally subscribed to men and father/son relationships, such as outdoors and rough-and-tumble play. He appears to enjoy his father’s creative and imaginative approach to play and finds this stimulating. X’s relationship with his mother is complimentary to that of his relationship with his father and meets different needs. The mother seems to focus on his subjective emotional state, a role generally subscribed to mothers in their relationships with their young children.
She further observed, at [75] (as I did often during the trial, as noted earlier in these reasons) (emphasis added):
There are mutual allegations that one parent provokes the other such that it is difficult to know what might reduce the parental conflict. Certainly minimising face-to-face contact between the parents would improve the situation and this factor would lend weight to the proposal of X attending a different school rather than being a student at the school in which his mother teaches. However, this is a further destabilising factor for X, having had a number of changes in arrangements regarding his care.
She further observed, at [79]:
The parents offer quite differing accounts of the incidents and interaction between them. Due to the parents’ poor communication, the ongoing parental conflict, their diverging parenting practices and the alleged physical, verbal and emotional violence, there is a concern that a week about shared care arrangement will be disruptive and confusing for X and not provide sufficient consistency to maintain his optimal development and well-being because the parents are unable to cooperate and negotiate about their son’s needs.
And after noting some further concerns about a shared care arrangement, she offered a list of things that would likely assist the parents to reduce the conflict between them, at [81]:
Ø That the parents consider having no face to face contact so that there is no conflict at X’s school, or
Ø That X changes to a school such as (omitted) School in (omitted) NSW.
Ø That the parents each attend a parenting course related to cooperatively parenting after separation.
Ø That the parents do not attend each other’s place of residence for any purpose.
Ø That if the parents attend an activity of X’s together they refrain from discussing parenting arrangements during that time and refrain from any conflictual behaviour.
Ø That neither parent speaks in a derogatory manner about the other in the presence of X or allows any other person to do so.
Her formal recommendations were in the following terms, at [82] – [88]:
That if the Court determines that the parents are able to effectively cooperate in the parenting of X then consideration could be given to X living in a shared week about arrangement with the parents with changeover occurring on a Friday after school.
If this is not the case, that X lives with the mother.
In this arrangement, that X spends time with the father from after school on Thursday to before school Monday and each alternate weekend and half of each NSW School Holiday period.
That the father attends a regular psychiatric review.
That the parents separately attend the Assisting Responsible Care for Kids (ARCK) program at the Marymead Child and Family Centre.
That the parents are prohibited from making derogatory comments about the other parent or causing another person to do so in the presence of X.
That the Court gives consideration to X attending (omitted) Primary School in (omitted) New South Wales in the event that the parents are unable to cooperatively parent their son.
In her oral evidence. Ms F commented as follows.
First, she confirmed that X has a good relationship with both parents. Secondly, in relation to different styles of discipline in each household, Ms F did not think that the Father’s “style” of discipline posed an emotional risk to X. And thirdly, the different parenting styles, she thought, X found confusing.[90]
[90] Transcript (26th March 2014) p.7. Hereafter, all references will be to the transcript of this date.
Following a number of examples given by the Father’s lawyer, Ms F noted the number of occasions and circumstances when the parties had been able to work together in recent times. This led to the following question and answer:[91]
… did those things indicate that there was the potential for cooperation and communication between the parents?‑‑‑There seemed to be some. Yes.
[91] T 8.
Ms F agreed that it was important that the parents minimise coming face to face with each as much as possible, as well as not going to each other’s home.[92]
[92] T 9 & 17.
Similarly, she agreed that it was not in X’s interests for the police to be involved in disputes between the parents. She also agreed that, although X seemed not to have much of an issue about his Mother teaching at his school, the interactions between the parents at the school “creates problems.”[93]
[93] T 10.
It appeared, and the Family Consultant agreed, based on para.18 of the Mother’s affidavit filed on 18th March 2014 that she was engaged in the “ongoing monitoring” of X, even on a daily basis.
It would aid the parents, Ms F suggested (using my words), if the parents could view their different parenting styles as being “complementary” rather than “oppositional.”[94] She also confirmed that she saw nothing to suggest that X was nervous around his Father.
[94] T 12.
Ms F also endorsed a proposition/suggestion from me to in the following terms:[95]
[95] T 15.
HIS HONOUR: Can I ask you this, just before I call on Mr Lawton, if the court was minded to move to some sort of shared care arrangement at some stage, would you think that one way of going about that that would be not unreasonable, would be that – would be a graduated move, so that it wouldn’t just go, say from a 4/10 to a shared care, but rather it would be over a period of time?
THE WITNESS: Yes.
In relation to the recommendation about the Father having regular psychiatric reviews, she suggested that at least twice per year would be satisfactory.[96]
[96] T 16.
Ms F suggested that where parents, such as the parties in this case, parent in a significantly different manner, it should be called “parallel parenting”, rather than “co-parenting”, which could still work if it was done without conflict.[97]
[97] T 18.
In answer to questions (from the ICL) about a communication book, and whether the parents could use it effectively, Ms F said:[98]
… just in relation to communication though, if orders were made for a shared care arrangement, do you think that a communication book would be able to adequately assist the parents in parenting X? Is it a sufficient medium to achieve, I guess, what’s in X’s best interest?‑‑‑Communication books really depend on how they’re used. I think, for the day to day things, I think they’re all right. I think when there’s a serious concern about his health or wellbeing, it really needs to be a discussion. That doesn’t have to be face to face. It could be over the phone. For instance, if he’s really unwell and needs to see a doctor or maybe go to hospital, I don’t think that can go through a communication book.
Is there anything that you’ve observed or heard that would lead you to believe that the parents could not use a communication book well?‑‑‑I think these parents are very good at communicating, just not with each other. So, could they do it? Yes. But I think it depends on the intent and motivation.
When you say not communicating with each other, do you mean that they communicate well with X?‑‑‑Yes. They both have a very good manner of communicating with him. And I’m sure that in their adult relationships the communication is not of the nature that we’re talking about now.
[98] T 19 – 20.
And in relation to parenting generally, she observed:[99]
What about with respect to parallel parenting?‑‑‑I think parallel parenting can work in a shared arrangement, so long as there’s a respect for the boundaries that are there between one household and the other and one parent’s practice and the other, if that makes sense.
And do you have any ideas of how that respect for boundaries could be achieved in this situation?‑‑‑Well I think it requires adhering to any orders that are made. It’s probably not a good idea to be – and certainly in the short term, to be making arrangements that are outside any orders, because that just leads to a greater possibility of there being conflict.
… would that confusion and concern for X be exacerbated under a shared care arrangement or would it exist the same whether or not it was four nights a fortnight as opposed to seven?‑‑‑I was wrestling with that question and I think essentially it would be the same.
[99] T 20.
In relation to the Father’s “mental health”, Ms F observed (emphasis added):[100]
And why is that exacerbated, and taking into account that X, as I understand, already spends a block period of seven days with his father during school holiday time?‑‑‑It’s a bit of a moveable sort of thing because mental illness, or even being – I mean parents can be unwell, psychologically unwell without being clinically – having a clinically condition and it’s just knowing when the onset might be and none of us know that so – which is why, you know, the time issues become a bit hypothetical.
[100] T 20.
In relation to the parties engaging in “effective cooperation”, Ms F said:[101]
[101] T 24.
What would you say would support the term, “effectively cooperate”?
THE WITNESS: Look, ideally I think to meet and talk about X’s welfare and development together. I think in a professional setting. I don’t know that a casual discussion over coffee would really work but to be able to talk together without X there, to raise issues they’re concerned about with each other on a regular basis.
MS NAIDU: Is that something that you envisage would – could be done through mediation or family therapy?
THE WITNESS: Yes, either of those.
Ultimately, Ms F said that she thought that “mediation” would be best for these parties, rather than “family therapy” for the discussion and resolution of parenting issues relating to X.
For my part, I should be taken to accept the evidence of Ms F without question. Likewise, and subject only to comments later in these reasons which refine and provide more detail to them, I should also be taken to accept the recommendations of the Family Consultant.
Submissions
The substance or essence of the parties’ positions may be summarised (which is also to say that I do not intend to repeat each submission by each party) as follows.
The Father submitted that he was committed to X evidenced by, among other things, his move from (omitted) to be closer to X’s school, and his flexibility at work where he can build up time to enable him to take longer periods of leave to be available for X during school holidays. Further, the Father said that notwithstanding various difficulties between the parents, they had been able quite regularly to co-parent.
The Mother focussed on the issues of the historical discordance in the parenting relationship, and the Father’s mental health, both of which should (it was submitted) preclude any increase in the Father’s time with X. The preferred course, she submitted, was to keep in place the stable “time with arrangement” of four nights per fortnight.
The ICL submitted that there should be orders that reduce the contact between the parents and thereby limit the potential for conflict between them. She noted the competing contentions about the Father’s mental health, as well as the Family Consultant’s observation of the parents “parallel parenting”. Finally, the ICL supported the importance of the parents communicating appropriately about X’s needs and that this would best occur in a professional setting, such as with a mediator.
The Legislative Scaffold
In the light of the evidence of the parties, and the comments already made in relation to it, I note the following in relation to the statutory scaffolding that must be negotiated to determine orders that are in the children’s best interests, pursuant to s.60CA of the Family Law Act1975 (“the Act”).
Subject to what is said later in these reasons, a convenient jurisprudential touchstone for the following discussion is the summary of principle by Brown J in Mazorskiv Albright in relation to Part VII of the Act, noting, of course, that there have been significant changes to the primary and additional considerations in relation to “family violence”. Respectfully, and cognisant of the ‘family violence’ changes to the ‘pathway’, I adopt Brown J’s overview of relevant sections (and principles) of Part VII of the Act. Her Honour’s comments should, of course (as I have said), be considered in the light of relevant statutory changes, for example, to ss.60CC(2A) and 60CC(3)(c).[102] At [3] – [6] her Honour said:
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[102] Mazorski v Albright (2008) 37 Fam LR 518. Her Honour’s remarks in relation to the “twin pillars” have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; Maluka v Maluka (2012) 45 Fam LR 129.
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[103]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the Court should consider equal time arrangements.
[103] Brown J’s remarks in this regard have been endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and by a differently constituted Full Court in Mulvany v Lane (2009) 41 Fam LR 418 at [90], and McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335] similarly approved Brown J’s remarks.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the Court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the Court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the Court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) – (4) is intended to ensure that the Courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Without necessarily referring to each sub-paragraph, in the first instance, I should be taken to follow sequentially the order of matters set out in s.60CC(3).[104]
[104] Generally, regarding the order of addressing relevant “considerations” under the Act, see the recent Full Court discussion in SCVG & KLD [2014] FamCAFC 42 at [71] ff.
Although X is recorded by the Family Consultant as expressing a view of his desire to spend equal time, or one week with each parent, having regard to his age, I do not think that his views should be given substantial weight. They are a factor, but not a decisive one.
The evidence clearly confirms that X has a good and close relationship with both parents. There was very brief, but unchallenged, evidence that X also has a good and close relationship with Mr Mott’s non-live-in partner, Ms R.
For the purposes of s.60CC(3)(c), both parents, but in noticeably different ways, have participated in decisions about X’s welfare and in particular concerning major long-term issues. That said, at times, the Mother has not involved the Father in some decisions affecting X (for reasons she gives and noted earlier in these reasons), and it is said that the Father has not always followed through, or accepted, the Mother’s attention to X’s medical issues.
There is no question that both parents communicate well with X, and they both spend regular time with him.
The Mother contends, but which the Father rejects, that the Father has not paid for certain expenses in relation to X’s care. On the whole, however, I do not understand that there has been any allegation about X being neglected or lacking in having his needs properly met in any relevant respect. Both parents bring different gifts and talents to their care and parenting of X, as noted by the Family Consultant.[105]
[105] The comments made here apply equally to the considerations in s.60CC(3)(ca) & (f).
Given that (a) there is no suggestion that this is or should be a “no contact” case between X and his Father, and (b) even on the Mother’s “best case” X and his Father would still be spending reasonably significant and regular time together, any change such as an increase in the child’s time with his Father, in my view, will likely make very little difference in the child’s circumstances. Moreover, given that X has expressed consistently his desire to spend more time with his Father, and that his capacity to deal or cope with modest change in his life will very likely increase as he gets older, the matters contemplated by s.60CC(3)(d) do not and need not, in my view, figure prominently in the Court’s determination of orders that are in X’s best interests.
Given how close to each other, and to X’s school (current and proposed), both parents live, there are no relevant issues of “difficulty and expense” to be considered.
In relation to the matters in s.60CC(3)(g), again the Family Consultant helpfully observed a number of attributes that each parent brought to their parenting of X, and how they genuinely complemented the interests and strengths of the child. In particular I note that Ms F commented on X’s desire not only to spend more time with his Father but also that X’s “energy” (my word) was encouraged and engaged by the Father’s more active life-style (again my word). As noted in more detail in the Family Report, and as recorded earlier in these reasons, I accept Ms F’s comments and observations.
In addition to what I have already observed in relation to sub-paragraphs (c), (ca) and (f), in my view, both parents are genuinely devoted and diligent parents. The singular difference is in their approach to parenting. Mr Mott is much more adventurous than is Ms Donald in relation to the parenting of X. She views some, perhaps most, of that “adventure” as dangerous and posing a risk to X. He views the Mother as restricting, even constricting, of this more “robust” approach to parenting. X doubtless needs both styles, but he is drawn in particular to his Father’s much more “out-doors” oriented life-style. This is hardly surprising for a young boy. It is hardly surprising that the Mother is somewhat resistant, not only because of her fear of exposing X to possible “risk”, but also because her “little boy” is growing up and wants to explore in ways that his Mother finds somewhat inimical or threatening. Ms F commented further about the respective strengths and differences between the parenting styles. I will not repeat them.
The matters of “family violence”, as noted by Ms F, and as set out in the material before the Court, are obviously concerning. Both parties have shown in the past a significant capacity both to work together but also to incite (as much by frustration as anything else) the other to react, sometimes violently.
In my view, the Mother has, at times, exasperated the Father beyond his capacity to withstand what he perceives as her provocation. None of this is to condone his actions of violence towards the Mother. He has shown very poor control, and judgment, at times. Indeed, apart from the reprehensible nature of such events, and his failure at times to regulate his frustrations has also likely heightened the Mother’s anxiety, and exacerbated her lack of confidence in him.
At the same time, not only has the Mother confirmed that in the past, she was violent to the Father, but more particularly, in my view, at times she has shown very poor judgment, such as venturing out to the Father’s property in February 2013, and involving the police needlessly on that occasion (prior to her going to the Father’s property), and when X presented with some bruising following a game of “nipple cripple.” Why the police needed to be involved in the latter instance in particular is quite concerning. In my view, it was clearly a case of over-reaction.
To repeat: both parents, in different ways, have shown poor judgment and poor self-control.
The prudential judgments of the parents, particularly the Mother in her attempts to micro-manage X’s time with his Father, have quite regularly impeded a co-operative approach to parenting.
The orders I propose are – both as a matter of logic and otherwise – those that I consider the most preferable in all the circumstances that will least likely lead to the institution of further proceedings.
There are two matters to consider finally (per s.60CC(3)(o)): the Father’s mental health; and the parties regular attendance at mediation, away from the Court, to discuss parenting matters. The following comments are apposite:
(i)in my view, the Mother will never be completely assured of the Father’s “well-ness” in relation to this issue. She will always be guarded and will not accept unreservedly any relevant mental health review;
(ii)the Father’s professional position is likely to, and should, assure the Mother and the Court that his mental health is well controlled. It is implausible that such a position of responsibility, particularly in the field of mental health practice and regulation could be exercised without someone noticing anything untoward;
(iii)be that as it may, it is imperative, and notwithstanding the two “clear” psychiatric reviews before the Court, that the Father undergo regular psychiatric review. It is for everyone’s protection (including his) that regular formal monitoring take place;
(iv)regular consultation and communication is essential in parenting. The clear evidence here is that the parties have a propensity at times to work well together, but also very regularly not to do so. In my view, the best way to ensure proper communication is to have regular meetings in a professional setting, but away from the Court. I put this and related matters to the parties a number of times during the trial; and the Family Consultant and the ICL endorsed such an approach.
Because (i) of the protective orders to be put in place, and the Court’s attention to orders that will keep the parents from coming directly in to contact, except in a highly structured environment at mediation, (ii) the parents have often been able to work co-operatively, and (iii) the parents have agreed to both an equal time arrangement in the past and to a four-ten arrangement that is currently in place, in my view, there is no rebuttal of the presumption in favour of equal shared parental responsibility.[106] Such an order will be made.
[106] See s.61DA.
It follows from such an order that the Court needs to consider the provisions of s.65DAA.[107] That section requires, in the first instance, a consideration of whether it is in the child’s best interests to spend equal time with each of his parents, and whether it is reasonably practicable that this occur. For reasons already given, there are no issues in relation to “reasonable practicality”, as set out in s.65DAA(5).
[107] See the discussion by the High Court of this section in MRR v GR (2010) 240 CLR 461 at [13] and [15].
On the evidence before the Court, and having regard to the protective and regulatory orders also being made, in my view, it is in X’s best interests that there be such an order. An equal time arrangement is to come into effect, over a period of time. However, this is subject to the Father’s regular compliance with regular mental health reviews (as set out in the orders), and that the transition from the current 4/10 arrangement to an equal time regime take place gradually over a period of time, also as prescribed in the orders.
Disposition
By way of general comment, and as already noted, having regard to the protective and regulatory orders the Court now puts in place, in my view, the pre-requisite indicated by the Family Consultant of the parties being able to co-operate, or as stated in her oral evidence, to “parallel parent” X effectively, can and will be achieved. I am not sufficiently deluded or lacking in insight to believe that this will occur overnight. It will take time as well as effort. But I am confident that both parents will do their best to ensure that X’s best interests will take precedence over all else, and that they now recognise that protracted litigation is significantly detrimental to all, especially to X.
Having regard to the objects and principles set out in s.60B(1) and (2), and the primary considerations in s.60CC(2) of the Act, in my view, the orders as proposed by the Family Consultant, and endorsed by the ICL, should be made, but with quite some amendment. The primary amendments are in terms indicated a number of times to the parties in the course of the trial by me (but obviously to little effect). They relate to the Father’s mental health reviews, and the graduated increase in X’s time with his Father.
Thus, the orders the Court considers to be in X’s best interests are as follows:
1) The parents have equal shared parental responsibility for the child, X born on (omitted) 2007;
2) Subject to the following orders, commencing in the first week of September 2015, the child spend week about time with his Mother and Father during school terms, with changeovers to occur after school on Friday and at 5:00pm from the other person’s home on non-school days;
3) Between the date of these orders and the commencement of the week-about arrangement set out in order 2, the child’s time with the Father will increase by one (1) overnight on each of the following dates: 1st December 2014, 1st March 2015, and 1st June 2015. That increase in time is conditional upon the Father providing a report to the Mother and to the head of the family consultants at the Court from his treating psychiatrist that he has no mental health issues of any note that would affect his parenting of X;
4) Upon the commencement of the shared care arrangement in September 2015, the Father is to continue to undertake a psychiatric assessment three times per year and after each such review to provide the Mother and the head of the family consultants at the Court with a copy of that assessment. This regime of assessment is to continue until X is 12 years of age, and thereafter, such review (and provision of a report) shall be twice per year;
5) That the child spend half of each school holiday period with his Father and half with his Mother, failing agreement being the first half of school holidays in odd numbered years with his Mother, and the second half of holidays in even numbered years with his Father.
6) For the purposes of order 3 above, the duration of school holidays is calculated from after school on the last day of term to before school on the first day of school.
7) Notwithstanding any other order above:
a) The child shall spend time with his Father from 9:00am – 5:00pm on Father’s Day and from 9:00am – 5:00pm on Mother’s Day with his Mother.
b) The child shall spend time with the parent who is not normally residing with for 2 hours on his birthday from after school to 5:00pm or for 4 hours from 3:00pm to 7:00pm on a non-school day.
c) The Easter break will be alternated between the parents with the Mother having the child in even years and the Father in odd years.
d) If the child is not normally with the Mother on her birthday, the Mother shall spend time with the child on her birthday for 2 hours on a school day from 3:00pm to 6:00pm and from 3:00pm to 7:00pm on a non-school day.
e) If the child is not normally with the Father on his birthday the Father shall spend time with the child on his birthday for 2 hours on a school day from 3:00pm to 6:00pm and from 3:00pm to 7:00pm on a non-school day.
f) The child shall be permitted to telephone the other parent at all reasonable times and each parent shall facilitate these calls.
g) Each parent shall be permitted to telephone the child at all reasonable times and each parent shall facilitate these calls.
8) Absent any other agreement in writing between the parties, (a) as from the commencement of the school year in 2015, X shall attend (omitted) Primary School in (omitted), (b) neither party shall otherwise change the child’s school without written agreement of the other party (any school chosen by the parents for X to attend shall not be a school at which the Mother teaches);
9) The parties shall enrol and attend post separation parenting courses and/or counselling to enhance their communication and co-operation capacities with one another.
10) Absent agreement in writing between them, the parties shall attend mediation no less than every two months to discuss and to update each other about parenting matters relating to X;
11) The parties shall keep each other advised of up to date contact numbers and addresses.
12) Both parties are restrained from saying unkind, unpleasant or derogatory things about the other to the child, in his presence or hearing, or allowing any other person to do so;
13) Each party shall authorise the school or any professional treating the child to inform the other of all relevant matters and provide the school and all treating professionals with the contact details of the other parent.
14) Each party will notify the other of any illness, injury or significant matter affecting the child as soon as practicable.
15) The parties shall use a communication book or email service which shall record all relevant information about the child’s health or activities schedule, education or wellbeing and shall ensure this communication is polite, business-like and respectful.
16) Each party shall ensure that the child attends his agreed extracurricular activities and if there is a dispute they shall attend further mediation to address this issue.
17) If there continues to be a dispute concerning which activity the child shall attend then the activity shall be chosen on a one for one the basis i.e. the parent who last elected for the child to attend an activity must wait his or her turn and the other parent has the right to choose the activity in dispute.
18) Both parties are restrained from discussing these Court proceedings, or any other dispute he or she is having with the other parent, with or in the presence or hearing of the child, or allowing any other person to do so;
19) Nothing in these orders shall prevent the parties making other arrangements from time to time as are agreed in writing
The Court so orders.
I certify that the preceding one hundred & seventy-five (175) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 26th September 2014
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Procedural Fairness
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Injunction
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Costs
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