Murdoch and Murdoch
[2009] FMCAfam 752
•17 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MURDOCH & MURDOCH | [2009] FMCAfam 752 |
| FAMILY LAW – Parenting – competing proposals – mental health concerns of the mother and father – primary and additional considerations – presumption of equal shared parental responsibility. |
| Family Law Act 1975, ss.4, 60CA, 60CC, 65DAA |
| Rice & Asplund (1979) FLC 90-725 |
| Applicant: | MR MURDOCH |
| Respondent: | MS MURDOCH |
| File Number: | SYC 7518 of 2007 |
| Judgment of: | Baumann FM |
| Hearing dates: | 3 & 4 September 2008 & 17 June 2009 |
| Date of Last Submission: | 17 June 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 17 July 2009 |
REPRESENTATION
| Applicant: | Self Represented |
| Counsel for the Respondent: | Mr Blacka |
| Solicitors for the Respondent: | Matthews Folbigg |
| Counsel for the Independent Children’s Lawyer: | Ms Nash |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of New South Wales |
ORDERS
The mother and father shall have equal shared parental responsibility for the children [X] born in 2001 and [Y] born in 2003 (“the children”).
The children shall live with the father as follows:
(a)Until end July 2009
(i)From after school on Thursday to before school on Friday
(ii)From 8:45am until 6pm each Sunday
(b)From 1 August until 30 September 2009
(i)Each alternate week from after school on Thursday until before school on Friday commencing 6 August 2009
(ii)Each alternate week from after school on Thursday until 6pm on Sunday commencing 13 August 2009
(c)From 1 October 2009
(i)Each alternate week from after school on Thursday until before school on Friday commencing 1 October 2009
(ii)Each alternate week from after school on Thursday until 6pm on Sunday commencing 8 October 2009.
(d)From the first scheduled weekend in the 2010 school year, each alternate weekend from after school Thursday until before school Monday (extended to before school Tuesday if Monday is a public holiday), in lieu of the time specified by Order 3(c)(ii). The alternate Thursday evening shall continue under Order 3(c)(i).
(e)From the conclusion of Term 3 2009 for one half of the school holidays which falls at the end of Terms 1, 2 and 3 as agreed between the parties and failing agreement the first half of the school holidays.
(f)From December 2009 for two periods of one week in the Christmas school holidays as follows:-
(i)From 24-31 December 2009 and each alternate year thereafter; and
(ii)From 31 December 2010 – 7 January 2011 and each alternate year thereafter; and
(iii)From 15-22 January in each year.
(g)For the Christmas school holidays commencing December 2011, for one half of each Christmas school holidays, being the first half of the 2011/2012 holidays and odd years thereafter and for the second half of the Christmas school holidays in the 2012/2013 holidays and even years thereafter. For the purpose of calculating the total period during these holidays to be divided in half, the children shall return to live with the mother by 12 noon on the Thursday preceding the commencement of the new school year.
(h)From 8:45am until 6pm on Father’s Day.
(i)By telephone each Tuesday between 6:00 and 6:30pm.
(j)At any other time as agreed between the parties in writing.
At all other times the children will live with the mother, including from 8:45am until 6pm Mother’s Day each year.
From the conclusion of Term 3 2009 the father’s time with the children pursuant to Order 3(c) shall be suspended during all school holiday periods and time pursuant to Order 3(c)(i) and Order 3(d) shall resume on the first Thursday of the new school term.
During the school term the father shall collect the children from their schools and deliver them to the school on Thursdays and Fridays (and from 2010 Mondays), and all other changeovers shall take place at [omitted].
Each party is restrained from denigrating the other party or any member of the other party’s family or household in the presence or hearing of the children.
Each of the parties shall keep the other informed of any medical emergency or treatment in respect of the children.
Each party is restrained from discussing these proceedings in the presence or hearing of either child and shall use their best endeavours to ensure that no other person discusses these proceedings in the presence or hearing of the children or either of them.
Each party is at liberty to attend any school function to which parents are invited.
Both parents shall use their best endeavours to ensure that each is consulted about any issue relating to the children’s health or education and shall give all consents necessary to the children’s school to enable the parents to obtain all relevant communications from the school.
The father provide to both the Legal Aid Commission of NSW and to the Court, within 7 days of today’s date, a submission in response to the application by the Independent Children’s Lawyer for costs.
That the mother shall provide the father each six months a letter from her treating doctor confirming:
(a)That the mother is attending for treatment; and
(b)That the mother is complying with any treatment regime.
THE COURT NOTES
If under this Order, the children are living with the mother on Good Friday, Easter Sunday and/or Christmas Eve/Christmas Day, the mother will consider any wishes expressed by the children to attend local mass consistent with their introduction to the Catholic faith they practice when living with the father.
IT IS NOTED that publication of this judgment under the pseudonym Murdoch & Murdoch is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
SYC 7518 of 2007
| MR MURDOCH |
Applicant
And
| MS MURDOCH |
Respondent
REASONS FOR JUDGMENT
Introduction
Although this is a parenting case concerning a determination of what is in the best interest of two young girls, [X] (now aged 7) and [Y] (aged 5), these proceedings and the ultimate result have been shaped by the personalities and emotional vulnerabilities of the parents.
Both the Applicant father Mr Murdoch (aged 37) and the Respondent mother Ms Murdoch (aged 37) have been diagnosed as suffering from mental health challenges. I explore these issues in more detail in these reasons. Furthermore the proceedings commenced by the father in October 2007 after the parents separated in November 2006, have had an elongated journey, again for reasons which I explain.
Although causing some disquiet to the father, the Court had the assistance of a report by Professor Quadrio, a Consultant Psychiatrist, who prepared a family report as well as providing a psychiatric assessment of the father in particular, and the mother more generally.
In these reasons I seek to explain in a hopefully discernable pathway, and without feeling the need to take the numerous diversions or side tracks invited by the material to investigate, I have taken to the conclusions I have in this matter.
Brief History
These two highly intelligent and articulate parents formed a relationship, and met when at university and married about 12 months later in December 1994.
They spent time overseas supporting the father’s desire to pursue a [musical] career (for which he has an acknowledged talent), but returned to Australia after about three years. It seems clear that the early years of the marriage were shaped by financial tensions and frequent arguments. Early concerns for these practicing Catholics about their ability to conceive proved unfounded with the birth of [X] in December 2001 and then [Y] in October 2003.
The birth of these children became a focus for the parents’ energies, particularly the mother who devoted herself to the “stay at home” role whilst the father pursued his work options. I am satisfied the father also drew much happiness from their children and his role as their father, but his unfulfilled career ambitions caused, the mother says, him to become depressed and at times angry and frustrated. The mother claims towards the end of 2005 the father perpetrated family violence on her and some incidents were witnessed by [X]. The father, although he admits to some incidents (and showed genuine regret), did not acknowledge or concede the frequency of violent events alleged by the mother.
The mother left the family home with the children on 6 November 2006. The father, although he acknowledged that the marriage was unhappy, seemed to portray a sense of surprise with the mother’s decision – although, when reflecting on this with Professor Quadrio, he said that the mother’s negative and hurtful comments to him had increased and that he felt the mother was trying to regulate his time with his children, describing it “becoming industrialised”, as a preparation towards final separation.
Some difficulties in parenting arrangements post separation were encountered, and the parents, in a clear attempt to try and resolve the matter by mediation, engaged the services of Professor Quadrio as a mediator/therapist. She was informed of the parties’ history mostly by their personal accounts to her but also some previous medical reports provided to her as set out at the commencement of her first report. I refer later in these reasons to this report (dated 6 June 2007) but also, the family report dated 29 August 2008.
Procedural History
A brief procedural history is desirable to add some further context to this dispute.
The father commenced proceedings on 31 October 2007, seeking week about time with the children. Initially the father was represented but by the time of the hearing in September 2008 he was unrepresented. Federal Magistrate Sexton was the docketed Federal Magistrate and when the matter first came before her on 6 February 2008 Her Honour appointed an Independent Children’s Lawyer (“ICL”). No actual interim order was made, the Court noting in part:-
“a)The parties have an agreement that the children presently spend time with the father on alternate Sundays, each Wednesday after school during school terms, each Friday during school holidays and the whole of 10 February 2008;
b)The father advises the Court he is presently in weekly therapy with Dr K, Consultant Psychiatrist at [E] and intends to continue therapy.
c)Dr Quadrio’s assessment of the father’s mental state and that the father takes issue with that assessment;
d)The father is asking for more time with the children including overnight.”
Although the matter was listed for trial on 23 June 2008 that trial was vacated, it seems because of the non-availability of a family report prepared by Professor Quadrio and dated 27 August 2008, arising from interviews on 25 July 2008. The matter was to be heard by Chief Federal Magistrate Pascoe, but because of pre-hearing negotiations which delayed the commencement of the trial, the matter proceeded into cross examination on 14 September 2008 before me. The parties were to provide written submissions after Counsel for the ICL, at the conclusion of the trial, made oral submissions.
It should be noted that, again without an actual specific order, when Federal Magistrate Lapthorn adjourned the hearing on 23 June 2008, the order noted that the current arrangement for day time only was to continue until trial.
After the hearing, submissions were received – the last of which were filed by the father on 29 September 2008. Early in the New Year when the Court was about to deliver reasons, it came to the Court’s attention that there was a development in this matter. On 26 December 2008 the mother experienced feelings of “very severe depression” and by
31 December 2008, on the advice of the mother’s then treating Psychiatrist Dr C, the mother was admitted into the [O] Clinic as a voluntary patient. She remained as an in-patient until approximately 20 January 2009 and thereafter has resumed full time care of the children, from 24 January 2009. The father resumed exercising time in accordance with an arrangement agreed between the parents put in place voluntarily after the hearing in September 2008 (from around Father’s Day 2008), namely that the children spend each Thursday night and all day Sunday with the father.
It is also important, in my view, to refer in this part of my judgment, to the email forwarded (on instructions I assume), by the solicitors for the mother to the father on 27 January 2009 (see Annexure “E” to Affidavit of the mother filed 10 March 2009), where the mother renewed the offer originally made by email of 27 November 2008, that the father’s time with the children increase to:-
“Week 1: 3pm Thursday – 9am Friday.
Week 2: 3pm Thursday – 6pm Saturday.
Noting your concerns that the November proposal does not include any Sunday time our client would also be happy for the Week 2 arrangement to be from 3pm Friday until 6pm Sunday instead of Thursday to Saturday.”
The father’s position in response was as set out in his email to the mother’s solicitors of 27 November 2008 (see Annexure “B”). As a result the extended time did not occur.
On 13 February 2009, on the oral application of the father, I reopened the proceedings and subsequently it proceeded into further evidence before me on 17 June 2009. That further evidence included additional Affidavits by the parents; an Affidavit by Dr C – all of whom were cross examined. Because of legal aid and time restraints it was not possible for Professor Quadrio to prepare a further written report, however at the Court’s discretion, Professor Quadrio read the additional material filed by the parents, and sat in Court and heard the cross-examination of the parents and Dr C before offering further evidence upon which she was cross-examined.
Principles to be Applied
In making a parenting order the best interests of the children are the paramount consideration (s.60CA) but not the only consideration. The Act specifies various objects and underlying principles including the children’s right, unless contrary to their best interests, to spend time on a regular basis and be cared for by their parents with the aim of the children having a meaningful relationship with their parents and others significant to their care welfare and development. Later in these reasons, in seeking to explain the order which I believe on the evidence at this time best serves the interests of these children, I will make findings on relevant primary and additional considerations identified in s.60CC (2) (3) and (4) of the Act which forms the matrix by which the best interests of the children are determined.
If the presumption that the parties have equal parental responsibility applies, then the Court must consider whether it is in the best interests of the children to spend equal time with each parent and whether that would be reasonably practicable (see s.65DAA(5)).
Competing Proposals
Whilst it is instructive to understand that the proposals of the mother have shifted from that advanced at the hearing in September, by proposing more time for the father to spend with the children, essentially the position of the father had not significantly changed.
Even though the Court is, not bound by the proposals of the parties, it is appropriate to identify the competing proposals which the parties have asked me to consider, which I summarise as follows:-
Father
The father maintains his contention that it is in the children’s best interests that the parents have equal shared parental responsibility and equal time. During school terms the father proposes the equal time regime operate as follows:-
“1. Paternal Time
i. Each first alternate Saturday - Friday week from completion of school on Thursday to commencement of school Monday (4 days);
ii. Each second Saturday – Friday, from completion of school on Wednesday to Saturday morning changeover at 9:30 a.m. (3 days).
2. Maternal Time
i. Each first alternate Saturday – Friday week from completion of school on Monday through to commencement of school on Wednesday (2 days).
ii. Each second alternate Saturday – Friday week from Saturday morning changeover at 9:30am through to commencement of school on Thursday (5 days).”
The father proposes school holidays be shared on a week about basis. Some specific/special day time is proposed including days which are of significance in the Christian calendar such as Christmas and Easter. The father also proposes that the mother’s medical specialist confirm the mother’s continued treatment; and report to the ICL “on any matter relating to her illness or treatment which might impair the safety of the children whilst in her direct care.” The full text of the father’s proposed order was set out in the father’s document filed 17 March 2009.
Mother
The mother proposes that she have sole parental responsibility but will consult with the father on major long term issues – the final decision, on her proposal, will remain hers to make.
The mother proposes that the children live with her and have a graduated regime extending time over two months between 1 August 2009 and 1 October 2009 culminating in an ongoing regime that the children spend time with the father:-
“i.Each alternate week from 3pm Thursday until 9am on Friday commencing 1 October 2009;
ii.Each alternate week from 3pm on Thursday until 6pm on Sunday commencing 8 October2009.”
This amounts, mathematically, to four nights a fortnight with the father. The mother proposes half of all and of term one, two and three school holidays and two one week blocks in the Christmas school holidays be spent with the father.
Specific issues orders are similar to those proposed by the father, save that at paragraph 10, the mother proposes:-
“10.The father shall forthwith undertake a course of therapy with Dr K or such other therapist (“the therapist”) skilled in the treatment of personality disorders as approved by Professor Quadrio and:
a. The father shall attend such therapy as directed by therapist and comply with any reasonable direction of the therapist.
b. The father shall inform the ICL of the name and address of therapist forthwith upon his or her engagement.
c. Upon compliance with b., the ICL shall forward to the therapist the reports of Professor Quadrio dated June 2007 and 27 August 2008.
d. The father shall give all consents necessary for the therapist to release to the ICL the dates of any consultations with the father and his progress in any treatment.
e. The ICL shall advise the mother if the father ceases to attend the therapist.”
The full text of the mother’s proposal at the hearing in June is marked as Exhibit 3 and for the parties’ assistance has been produced as Appendix 1 to these Reasons.
Independent Children’s Lawyer
The ICL did not make a submission in respect of the competing proposals with particularity, except it was clear in my view that:-
a)The ICL supported the mother’s application for sole parental responsibility.
b)Broadly supported the progression into extended time proposed by the mother.
c)Requires both parents to complete a Post Separation Parenting Course, if not already completed satisfactorily.
d)Supports a final, rather than an interim order, but proposes that the ICL not be discharged for 12 months.
It is apparent from these proposals, that the mother supports (after a short period of time) to move into a regime where the father would spend not equal time with the children, but substantial and significant time, as defined in s.65DAA(3) of the Act.
Before I commence an examination of the primary and additional considerations, I chose to make some findings about some issues in dispute.
The Mother’s Mental Health
It is clear from the first report of Professor Quadrio, and not challenged by the mother, that she has had a history “of an eating disorder and severe OCD” (Obsessive Compulsive Disorder) during her teens and 20s. The father was well aware of these traits in the early part of the parties’ relationship. I am satisfied that although the personalities of this couple caused them to often erupt into verbal disputes, and at times physical altercations, the mother coped with the stresses in the relationship reasonably well, although there were times when depressive symptoms arose and she was medicated. I accept the mother’s evidence that dealing with the father on parenting issues (including at and around the time of the first part of the trial), induces significant stress and anxiety in her. Professor Quadrio opines that the mother “is vulnerable to stress and dealing with the father is stressful”. I agree with both observations.
The mother’s reaction to the evidence at the hearing in September, to offer the father more time including overnight time, was an insightful response. She did not have to make such an arrangement. That she did so demonstrates an awareness of the children’s need for more time with their father. To follow that up with the further offer made in November 2008 for more extensive time was again, in my view insightful and reasonable. The father’s conditional response is similar to the tenor of other communications from him.
The mother says that the children were coping well with the increased time and, apart from the father’s fixation with equal time, before Christmas the parents were communicating better. Some flexibility in arrangements was negotiated including the children’s participation in a production of “The Sound of Music” with the father.
The mother says that in about October 2008 she experienced some feelings of depression and consulted her GP and says:-
“…I was at that time taking Cipramil – an antidepressant. Dr P prescribed Efexor instead of Cipramil and I commenced treatment – using the medication and seeing Dr P more regularly.”
Despite experiencing other symptoms; attending a Hospital Casualty Clinic and changing, on advice, her medication by ceasing Efexor and taking Zyprexa, the mother says she felt the onset of “very severe depression”. Her mother (who is a medical practitioner), gave her support with the children after 26 December but, as earlier noted, the unwellness continuing required her voluntary admission on 31 December 2008.
The mother did not think to ask the father to care for the children. Considering the arrangements in place at that time; coupled with her clearly impaired functioning and with the known support of her own mother, I would not regard her failure to keep the father informed and to seek his assistance as unexplained. The mother accepts now she should have informed the father.
Whilst I deal briefly with the incident at the hospital later in these reasons, the ultimate issue that caused the reopening of the proceedings was how these events in January 2009 should be assessed in terms of the mother’s current and future functioning as a parent.
Although the father was not entirely comforted by the initial letter from the mother’s Psychiatrist Dr C, or his evidence by telephone, it does seem from his final submissions that he was satisfied that the matters have been fully ventilated, and does not assert the mother presents a risk to the children now, although he seeks the comfort of ongoing reporting.
The mother has good insight into her vulnerability. She is an impressive lady in the witness box considering what she has experienced. Although she sought a second opinion on her diagnosis from the “[C] Clinic” (see Exhibit “1”), she is seemingly committed to maintaining a therapeutic relationship with her chosen Psychiatrist
Dr C. Ultimately, although the father would assert otherwise, the conclusions of the “[C] Clinic”, Dr C and Professor Quadrio about the mother’s functioning are the same – even though her formal diagnosis by Dr C is not accepted entirely by Professor Quadrio.
As a finding, I accept that:-
a)The mother has insight into her vulnerability;
b)Whilst she maintains a therapeutic relationship with her chosen health professional and follows the advice of her doctors (including prescribed medication), she does not present as a risk to the children.
c)She has demonstrated, over a long period and even when placed under considerable stress, the capacity to cope with the daily rigours of parenting and, when feeling unwell emotionally, gets appropriate help and support.
For completeness, Dr C’s diagnosis of the mother is that she “suffers from Bipolar Affective Disorder” Professor Quadrio opined that the events of January 2009 could have been “drug induced”, and that the diagnosis of Bi Polar, based on one “hypermanic” episode might be “premature”. Independently, Professor Quadrio did not cavil with the treating psychiatrists’ prognosis for the mother, contained in his report of 16 March 2009 and confirmed in his cross examination.
The father, who in his Affidavit sought to give evidence of the effect of Bi Polar, focused in on the diagnosis of the mother – seeking it seemed to me in an attempt to divert the Court’s concerns about his own troubling diagnosis which I deal with next in these reasons.
The Father’s Mental Health
A reading of the father’s Affidavit material and the transcript of the hearings before me demonstrate, even at first blush that:-
a)The father is a loving and devoted father to his two young daughters.
b)He carries many unresolved issues about the breakdown of his relationship with the mother.
c)He is highly intelligent; articulate; creative and, in many ways, gifted and has many positive attributes which will enrich the lives of his children.
d)He is intense and has an entrenched and unshakeable view that anything other than equal time is against the best interests of the children and moreover, unfair to him as a devoted father.
A full reading of both reports by Professor Quadrio and her cross examination by, particularly the father, shows that the father does not accept, is in fact offended, by any suggestion that he suffers mental unwellness. Although he did attend a psychiatrist of his choice, Dr K’s evidence was not particularly helpful to the father. Dr K had been informed of Professor Quadrio’s diagnosis, and did not entirely agree with it. Although he said the father presented as a person who might have thought it was required of him to seek treatment, he seemed motivated to explore the treatment offered – namely psychotherapy.
No probative point is achieved by seeking, in this judgment to analyse and respond to all of the father’s concerns encapsulated in paragraphs 47 of his recent Affidavit or more particularly his written submissions filed 29 September 2008 under the heading “Illness”.
He made numerous criticisms of both the methodology and diagnosis of Professor Quadrio, namely that he has:-
“…a disturbance of personality that constitutes a personality disorder in general terms and, more specifically, he manifests features of obsessive compulsive, narcissistic and possibly schizoid personality disorder” (see page 21 of second Report).
I am conscious of the manner in which the father alleges in January 2009, the mother threw at him the diagnosis of Professor Quadrio. The parties are understandably both very sensitive to the diagnosis of any underlying mental health condition they suffer.
However, even though on all the evidence, I accept the views expressed by Professor Quadrio about the father, I am not of the view that this Court needs to “label” him with a finding of a particular personality disorder. It appears to me that on the whole of the evidence, including:-
a)The father’s workplace reliability;
b)The father’s capacity to maintain positions in the creative arts fields;
c)His apparently careful care of the children whilst the mother was hospitalised;
d)The mother’s observations about how well the increased time with the father went for the children (at least until the more recent examples of anxiety exhibited by [X]);
that the personality disorder of the father does not prevent him from functioning at a reasonable level and that he is alert and aware of the physical needs of the children. The mother’s evidence, the best I have, is that the children enjoy their time with the father.
The comments of Professor Quadrio, from which she has not resiled that:-
“…it remains my opinion that Mr Murdoch must be engaged in ongoing treatment with an expert clinician in order to deal with his mental health issues and to ensure the welfare of the children in his care.”
weigh heavily on my considerations, but that assessment of risk must, in my view, be made within the context of the other positive attributes of the father, and his functioning already mentioned – and importantly, the mother’s proposals. I say this because the mother, who has been in a relationship with the father for nearly all her adult life, probably knows him better than anyone. She has been, throughout these proceedings at times quite generous in her admiration for some of the father’s abilities and also has a well balanced insight, into what makes her children happy and the role the father plays and can play in the future. I also note that previous medical specialists who the report writer spoke to (Dr T and Dr K), do not believe the father is a risk to his children, although he does have some personality issues (see page 15 of Professor Quadrio’s Report and the Addendum).
I do not regard it as entirely sensible to ignore, or to give other than significant weight, to a proposal by an intelligent, insightful and emotional attuned parent – and in my view, at this time, the mother fits into that category.
Primary Considerations
Both parties acknowledge that there is a benefit to the children of having a meaningful relationship with both of them. The parents’ proposals identify how each of them believes the existing “meaningful relationship” can both be preserved and nurtured. I believe that the orders I propose to make will achieve for the children the continuing benefit of these important relationships.
I have already at some length explored the personality characteristics of both parents and the history each has experienced with mental unwellness. The mother concedes and acknowledges that she will, for the foreseeable future, be required to maintain a therapeutic relationship with a treating health professional. In that regard the mother, through her Counsel, agrees to an order in the following terms:-
“The mother shall provide the father each six months with a letter from her treating doctor confirming:-
(a) That the mother is attending for treatment; and
(b) That the mother is complying with any treatment regime.”
This proposal demonstrates that the mother has insight and an awareness of both her latent emotional vulnerability, but also importantly, the need for the father to be properly informed as the father of the children.
A similar concession was not made by the father – and this essentially arises from his view that he has no emotional challenges to overcome or monitor. Although he has undertaken treatment with Dr K, and Dr K says that if the father maintains genuine commitment he can provide quality psychotherapy, on the whole, of the evidence and the father’s history of treatment, I cannot be satisfied that he will maintain such treatment. As a result, the mother’s proposal for an order that the father “undertake a course of therapy with Dr K or such other therapist” creates some significant enforcement issues – in circumstances where I am not satisfied the father would go to such treatment, other than to be seen to comply with the order. The value of such therapy is questioned by Professor Quadrio. I agree. At least as important to the best interests of the children, and an effective safety net, is to have a regime of care which allows both parents to “monitor” the others’ parental performance through the usual opportunities that occur at changeovers and by the children naturally sharing information. I accept the cautionary comments of Professor Quadrio that, with some recent anxiety being demonstrated by [X] – both parents could attempt to exploit that presentation as a means of “pointing the finger” at the other or the other’s parenting.
It follows that all that I have noted in these reasons reveals that these two young girls cannot be said to be “risk free” in the care of either of their parents. There is no evidence that the children have been harmed or abused by their parents – save for [X] witnessing some family violence and the fact that she is now more aware of the parental conflict.
Children essentially get the parents they get – often not the parents they need or the parent’s children want. In this case, when functioning well, [X] and [Y] have two very committed, loving, creative and enriching parents – both of whom have mental health vulnerability. The orders I propose to make seek, in such a complex matrix, to balance these ever present uncertainties with the benefits the children have deserved and will continue to experience from having a meaningful relationship with both their father and their mother.
Additional Considerations
Although as Professor Quadrio identified, [X] expresses some wishes in regard to shared time with her parents, I accept the report writer’s concerns about the influence (subtly) of the parents on those views and the fact that she is too immature for her views to be given significant weight. At aged seven years, she still at times feels it would be good if her parents “lived together”. This is an age appropriate reaction. It is likely that the mother’s hospitalisation in January 2009 was unsettling on the child. This historically was the longest period that the child was not in the care of the mother.
In this context, the recent observations by the mother of the child’s increased anxiety was concerning. Professor Quadrio reflected on this in her additional evidence in June, and in particular [X]’s letter (Exhibit 2) that she is said to have written about the anticipated Easter time with the father. Clearly it was this young child’s attempt to “negotiate” an issue which had arisen between her parents. It really matters little how the dispute arose – the concern is that [X] felt a need to find a solution. For this child – described by Dr Quadrio as “intelligent, articulate and precocious” – it must have been a difficult experience. I have no doubt she perceived a need to write the letter because both parents had shared their views about the matter. Even though the mother says that [X] has expressed concerns about increasing the nights away from her to three nights (as would have occurred over Easter), the mother’s proposals graduate (sensibly in my view) to that level. The mother conceded that [Y] is probably happier to spend more time with the father.
Relationships
The children are primarily attached to their mother – an observation made (but not described in those terms) by Professor Quadrio. In view of the history, of care, I accept that the children’s strongest attachment is to their mother. They also have a well developed bond with their Dad, and although no assessment or observation has been made independently since the interviews in August 2008, I am comfortable in accepting the increased time and opportunities to interact with their father over the last ten months has enhanced their relationship with their father. I do not ignore the normal sibship closeness or the fact that both parents involve appropriately their extended family with the children, about whom the children “spoke warmly”.
Willingness to Facilitate the Other Parent’s Relationship
The father points to the post separation period and the mother’s unwillingness to support overnight visits for him, as evidence of a lack of support and encouragement of his time with the children by the mother. I do not agree.
When the parents embarked on the assessment/mediation with Professor Quadrio I accept they did so in a genuine endeavour to reach agreement. When Professor Quadrio made the assessments of the father that she documented in her first report, the mother felt unable to support overnight time. The father undertook some consultations with Dr K over some two to three months which ceased in April 2008. The mother’s concerns were not diminished. The father insisted on equal time. The exchanges of emails were very frequent – and the overall tenor of them showed the parties were locked into a polarised negotiating position.
However, as soon as the evidence was properly tested at the hearing in September, the mother offered overnight time. Her email of
27 November 2008(from her solicitor) showed a further willingness to be flexible and extend time. Although there is a need for fairly prescriptive orders, I do not find the mother is unwilling to encourage and support the children’s relationship with the father.
Similarly I am satisfied the father will facilitate and encourage the children’s relationship with their mother. Although some criticisms were levelled at the father for the manner in which he maintained the girls’ time with their mother when she was hospitalised, on the whole of the evidence and considering the traumatic and unexpected events which engulfed the mother, I regard the father’s conduct as appropriate.
The incident at the hospital involving the parents; the mother’s mother Dr K and the hospital staff really did little credit to either parent – but a minute examination of the incident is not justified and does not assist the determination of the matter in dispute. Certainly I do not regard the actions and remarks alleged during that heated exchange to persuade me against the positive findings I have made about the parents’ support for the children’s relationship with the other parent.
I rely upon these findings under s.60CC(3)(c) for the purposes of s.60CC(4) as well.
Likely Effect of Change
The mother’s proposal, providing for a graduated increase in time with the father, culminating in a four/ten night regime from 1 October 2009 is unlikely, in my view, to be a change that will have any adverse impact on the children. Importantly, the children will still perceive that they have a permanent home base with their mother. Professor Quadrio opines (at page 18 of her second Report), that:-
“The children are accustomed to being in the primary care of their mother and mostly they have been their lives and certainly since separation. Given their tender ages plus the concerns about the father’s mental status, it is my view that they should continue to reside primarily in her care.”
I accept this view and have, on the whole of the evidence, come to the same conclusion. As I explain further below, this view obviously does not then add support to the father’s proposal for equal time. The father’s proposal for equal time is in my view largely motivated by the father’s entrenched feeling that he is, in every way, the equal as a parent to the mother, although he acknowledges in his submissions that he does not seek exclusivity – but equality.
However the practical affect of equal time on the children’s need for routine and certainty in their daily development is rarely answered by pure mathematics. The father’s regime of 4 + 3 + 2 + 5 days would be overly disruptive; cause significant adjustments to the varying parenting styles; and require very co-operative parenting communication to deal with the day to day issues of young children.
Although at times the parents show glimpses of working well together – and although I acknowledge the mother’s hospitalisation in January may have significantly slowed a momentum of improved communication – I am far from satisfied that these parents at this time can make any equal time regime work well.
As much as any other factor, the move to an equal time regime either as configured by the father’s proposal or some other way, would create a change for the children which I am satisfied at this time is likely to be adverse to their development and well being.
There are no real practical difficulties that arise from where the parents live that shape the order that best meets the children’s interests.
Capacity and Attitude to Parenting
These reasons have dealt, at some length, with some of the parents’ underlying vulnerabilities – but it should not be though that each of them does not possess some excellent parenting qualities – for they do, and many they share.
Their love and commitment to do anything which they view will benefit [X] and [Y] is evidenced and acknowledged. Both parents value both education and achievement socially, culturally and musically. With the father’s musical gifts and interest in both singing and musical instruments these children are likely to be exposed and encouraged to explore many opportunities in the creative fields. The mother certainly seems happy to allow the father to take the lead in that area. Similarly, in respect of the children’s spiritual and religious nurturing, the father (a devout Catholic) has demonstrated a commitment to their education of Christianity. The mother supports that as well.
The mother is studious and intelligent and has a sense of calm which the father does not possess. She is, I believe, better attuned at present to the children’s emotional needs and she fulfils them when the children are in her care.
The very positive attributes which each parent brings to their parenting role is capable of being disturbed by any manifested difficulties which arise from their personality challenges. The mother, with her treatment and insight is likely, in my view, to suffer less disruption to the stability of her parenting than the father. The father’s prognosis is a little more uncertain. This again, in my view supports the mother’s proposal over the father’s equal time regime.
Both are working parents. I am satisfied that even if their work commitments increase or change, they will both be able to make appropriate arrangements from time to time. The father has, he says and I accept, the support of his mother and sister. The mother has also extended family support.
Family Violence
I am satisfied that “family violence” within the definition prescribed by s.4(1) of the Act has occurred in the past. The father admits as much. I also am satisfied that these two parents are quite capable of articulating a powerful arrangement and I am sure at times these exchanges, shaped by the underlying personality conflicts, have caused the mother in particular to be apprehensive. Apart from the circumstances causing the AVO to be made (which the father says was not necessary), the post separation dialogue has been characterised by frequent and convoluted email exchanges. Many of the emails are in evidence. They show the father’s at times obsessive need for detail. He does not have the same capacity for flexibility in my view, as the mother has exhibited. He is much more rigid in his approach and his stance and approach both causes stress to the mother and may, on occasions influence her to “give in”. I sense she fears that not doing so might merely prolong the agony of extended negotiations.
Making an Order Least Likely to Lead to the Institution of Further Proceedings
Although I raised for submissions in September 2008, whether I should make an interim order or a final order, with the further time and developments I see no benefit now in making other than a final order. That is what the parents both seek (supported by the ICL) and what the children need.
It is hard to predict whether the mere finalisation of these proceedings which have hung over the parents’ heads since almost the time of separation (nearly three years ago) will itself prove beneficial. I can not ignore the distinct possibility that it will – leaving the parties with the ongoing obligation to ensure the Court’s orders are complied with in all respects. As a further protection, and as contended for by the ICL, the Court will not discharge the ICL for twelve months.
In circumstances where the Court has determined, as I shortly summarise, that an equal time regime is not in the children’s best interests, I do not ignore the real possibility that the father will be displeased with the outcome and will continue to agitate, in whatever way he may, for an equal time parenting arrangement. Of course, if he does so by application, he will face the hurdle created by authorities such as Rice & Asplund (1979) FLC 90-725. I really can do no more.
Analysis and Conclusions
Equal Shared Parental Responsibility
I find that the presumption of equal shared parental responsibility is rebutted by the incidence of family violence which has occurred. However, such a finding merely means the presumption does not apply.
The Court is still required to consider whether equal shared parental responsibility is in the best interests of these children. In this regard the one effect of a finding that the parents share equal shared parental responsibility is that he parents are required to jointly make decisions about “major long-term issues”, broadly defined in s.4(1) as about:-
“(a) The child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.”
Although the mother finds the process of communicating with the father stressful – perhaps even tortuous – the fact remains that these parents have not really been found wanting when it comes to deciding major long-term issues. If anything, it is the day to day issues that cause more tensions in the poor and ineffective communication environment which exists.
I have carefully considered the whole of the evidence and particularly on this issue, the areas of divergence in values and long term aspirations each parent has for their children. Whilst I acknowledge the communication problems, I do not consider that poor communication alone is a basis for restricting a parent’s desire and participation in making major long-term decisions. Each of these parents have a valid and generally informed position on major issues. The father says the mother’s decisions to date have been essentially good. The mother has supported the children’s religious education. I do not, in this case, form the view that either parent would, out of spite, put at risk the child by asserting a position on a long term issue merely for the purpose of disagreeing. I do not discount the positive benefits which might flow to the parties’ communication by the finalisation of these proceedings and by undertaking a post orders parenting course.
I also take into consideration that excluding the father from other than a consultative part in major decisions is likely to act as a further catalyst for disputes, whereas involving him is more likely to add value to the decision making process.
For these reasons, I propose to order that the parents shall have equal shared parental responsibility.
Equal Time
As it is apparent from the reasons already given I am firmly of the view that an equal time regime is not in the children’s best interests. I am unable to predict if the parties’ communication and the children’s development as they get older will make an equal time regime a real child focused possibility. At the moment it is not.
However the father spending substantial and significant time broadly in accordance with the mother’s proposals is, in my view, in the children’s best interests. It maintains primary care with the mother, but affords increased opportunity for the children to spend both weekend time; school week time; special days and some school holidays with the father.
When preparing these reasons it occurred to me that perhaps the father, who was unrepresented, should be heard on the mother’s form of order before it is pronounced on that or a slightly amended form as his work situation might not accommodate the specific handover times.
Furthermore, I wish to hear the parties on:-
a)A proposal the Court is considering that, with the commencement of the 2010 school year, the father’s time actually ends at before school Monday (extending to before school Tuesday if Monday is a public holiday).
b)Whether there is still a dispute about [Y] attending [N] School, where I understand she is currently attending.
c)A proposal that commencing the Christmas school holidays in 2011/2012 (by which time [X] will be ten and [Y] will be eight), that the Christmas holidays be shared equally – with the children to be returned to the mother by the Thursday before the new school year commences. This will allow the children to be properly prepared for the new school year.
d)Any further specific submissions the father seeks to make on the mother’s proposed order – other than that relating to my decision which supports the graduated time from three nights a fortnight to four nights a fortnight.
I have decided to adopt this approach to avoid what could be an allegation that the father did not receive procedural fairness but also to improve the quality and understanding of this final order. It also avoids a prospect of applications under the slip rule.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate: L Parke
Date: 17 July 2009
Appendix 1 – Mother’s Current Proposal June 2009
The mother shall have sole parental responsibility for the children [X] born in 2001 and [Y] born in 2003 (“the children”).
The children shall live with the mother.
The children shall spend time with the father as follows:
a.Until end July 2009
i. From 3pm on Thursday to 9am on Friday
ii. From 8.45am until 6pm on each Sunday
b.From 1 August until 30 September 2009
i. Each alternate week from 3pm on Thursday until 9am on Friday commencing 6 August 2009
ii. Each alternate week from 3pm on Thursday until 6pm on Saturday commencing 13 August 2009
c.From 1 October 2009
i. Each alternate week from 3pm on Thursday until 9pm on Friday commencing 1 October 2009
ii. Each alternate week from 3pm on Thursday until 6pm on Sunday commencing 8 October 2009
d.From the conclusion of Term 3 2009 for one half of the holidays which falls at the end of Terms 1, 2 and 3 as agreed between the parties and failing agreement the first half of the holidays.
e.From December 2009 for two periods of one week in the Christmas holidays as follows:
i. From 24 – 31 December 2009 and each alternate year thereafter and
ii. From 31 December 2010 – 7 January 2011 and each alternate year thereafter and
iii.From 15 – 22 January in each year.
f.From 8.45am until 6pm on Father’s Day.
g.By telephone each Tuesday between 6 and 6.30pm.
h.At any other time as agreed between the parties in writing.
From the conclusion of Term 3 2009 the father’s time with the children pursuant to Order 3c. shall be suspended during all school holiday periods and time pursuant to Order 3c.i. shall resume on the first Thursday of the new school term.
During the school term the father shall collect the children from
[N] School and deliver them to the school on Thursdays and Fridays and all other changeovers shall take place at [omitted].
Each party is restrained from denigrating the other party or any member of the other party’s family or household in the presence or hearing of the children.
Each of the parties shall keep the other informed of any medical emergency or treatment in respect of the children.
Each party is restrained from discussing these proceedings in the presence of hearing of either child and shall use their best endeavours to ensure that no other person discusses these proceedings in the presence or hearing of the children or either of them.
Each party is at liberty to attend any school function to which parents are invited.
The father shall forthwith undertake a course of therapy with Dr K or such other therapist (“the therapist”) skilled in the treatment of personality disorders as approved by Professor Quadrio and:
a.The father shall attend such therapy as directed by therapist and comply with any reasonable direction of the therapist.
b.The father shall inform the ICL of the name and address of therapist forthwith upon his or her engagement.
c.Upon compliance with b. the ICL shall forward to the therapist the reports of Professor Quadrio dated June 2007 and 27 August 2008.
d.The father shall give all consents necessary for the therapist to release to the ICL the dates of any consultations with the father and his progress in any treatment.
e.The ICL shall advise the mother if the father ceases to attend the therapist.
The mother shall use her best endeavours to ensure that the father is consulted about any issue relating to the children’s health or education and shall give all consents necessary to the children’s school to enable the father to obtain all relevant communications from the school.
In the Alternative
In the event that the Court orders that the parties have equal shared parental responsibility
That the child [Y] shall be enrolled at [N] School in 2009.
That the mother shall provide the father each six months a letter from her treating doctor confirming:
a.That the mother is attending for treatment and
b.That they mother is complying with any treatment regime.
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