NADYA & HENGKI

FAMILY COURT OF AUSTRALIA

NADYA & HENGKI

[2012] FamCA 907

FAMILY LAW – CHILDREN - Best interests - mother’s mental health and how that impacts upon her capacity to care for the children – whether the mother’s time should be supervised and where that time should be spent.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Nadya

RESPONDENT:

Mr Hengki

INDEPENDENT CHILDREN’S LAWYER:

Mr Glezer

FILE NUMBER:

MLC

1985

2010

DATE DELIVERED:

2 November 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

7 & 8 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Bonney

SOLICITOR FOR THE APPLICANT:

Macgreggor Barristers and Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Boden

SOLICITOR FOR THE RESPONDENT:

Starnet Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Glaister

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Glezer Lanteri & Associates

IT IS ORDERED THAT

The father have sole parental responsibility for the children J born … November 2001, M born … April 2003 and Y born … March 2005 (“the children”), save that the father shall, prior to the making of the sole ultimate decision about any long term welfare issue:-
(a) Use his best endeavours to advise the mother in writing of any decision intended to be made; and
(b) Seek the mother’s written response in relation thereto; and
(c)Consider, by reference to the best interests of the child or children, any such response prior to making any decision; and
(d)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
The children live with the father.
The mother spend time and communicate with the children as follows:
(a)Each Sunday for three hours at times to be agreed and failing agreement from 10:00am to 1:00pm.
(b)That time continue to in accordance with paragraph 3(a) until the mother obtains long term housing at which time the mother’s time is to increase to five hours on either a Saturday or a Sunday from 10:00am to 3:00pm for a period of six occasions or until the mother has obtained adequate bedding for overnight time to commence in accordance with paragraphs 3 (d) below.
(c)In addition to paragraphs 3(a) and 3(b) the mother spend time as follows:-
i)In the event that the children’s birthdays are not a day that the mother would normally spend time, for not less than three hours on each of the children’s birthdays at times to be agreed and failing agreement, from 3:30pm to 7:00pm on a weekday or 1:00pm to 5:00pm on a weekend day;
ii)In the event that mother’s birthday is not a day that the mother would normally spend time, for three hours on the mother’s birthday at times to be agreed and failing agreement, from 3:30pm to 6:00pm on a weekday or 1:00pm to 5:00pm on a weekend day;
iii)In the event that Mother’s Day is not a day that the mother would normally spend time from 5:00pm Mother’s Day eve to 6:00pm Mother’s Day;
iv)For the Eid festival for a period of three hours at times to be agreed and in default of agreement from 4:00pm to 7:00pm;
v)For the Idul Adha Festival for a period of three hours at times to be agreed and in default of agreement from 4:00pm to 7:00pm;
vi)at all reasonable times by telephone, email, Skype or other electronic mode of communication, letters and cards. The father to facilitate such communications; and
vii)such further and other times as may be agreed to in writing between the parties.
(d)In addition to paragraphs 3(c)(i) – (vii) inclusive upon the mother confirming to the father in writing that she has adequate bedding for the children with mother’s time increasing whereby she spends time and communicates with the children:-
(i)In each alternate week from 10:00am Saturday until 5:00pm Sunday:
(ii)In the alternate week to paragraph (i) above on a Wednesday evening from 5:00pm to 7:30pm;
(iii)For one half of each of the school term holidays as agreed and failing agreement the first half;
(iv)For one half of the long summer holidays as agreed and failing agreement alternating as to the first and second halves with the Wife to exercise time in the first half in the year 2012/2013 with time to commence for the first half at the conclusion of the school year and is to continue until 12:00 noon on the third Saturday following the conclusion of the school term.
The mother’s time as referred to in paragraph 3(a)(b) and (d)(i) above be suspended during school holiday periods and on Father’s Day from 5:00pm Father’s Day eve to 6:00pm Father’s Day the following Monday and for the Children’s and the father’s birthday for the same time periods as specified in paragraphs 3(c)(i) and (ii) in the event such days fall on days the children are in the mother’s care.
The father be at liberty to communicate with the children, whilst they are in the care of the mother at all reasonable times by telephone, email, Skype or other electronic mode of communication. The mother is to facilitate such communications.
Changeovers are to occur at the mother’s residence or such other venue as may be advised by her and agreed to by the father, and failing agreement a McDonald’s Restaurant nominated by the mother.
That both parties forthwith advise and keep the other advised as to:-
a)The name and address of any health professionals of the children or either of them attend by email or letter;
b)Except in an emergency, or in the case of the need for urgent treatment, advise the other in advance of any initial medical appointments (as distinct from subsequent appointments) and the purpose of such initial appointments via email, letter or SMS text message; and
c)Authorise and direct the children’s schools and any and all health professionals to provide any information to either party as requested by them that parents might normally be entitled to receive from time to time, and each party is at liberty to attend upon health professionals and parent teacher interviews at their own time and expense other than when the other is present.
The father and mother each advise the other as soon as practicable by email, text message, or in the case of an emergency by telephone, upon becoming aware of:-
a)any significant injury or illness affecting the children or either of them;
b)any illness requiring the provision of any medication prescribed by a medical Practitioner; and
c)any hospital attendance by the children or either of them.
The father do all things necessary to authorise the mother and to keep the mother authorised to receive information at the expense of the mother copies of school reports, newsletters, school photographs and all such other information that would normally be received by a parent and that the mother be permitted to attend the children’s sports days, concerts and usual activities affiliated with the school and other extra-curricular activities that the children or either of them participate in.
Each party keep the other advised as to their residential address, landline and mobile telephone numbers and email addresses and notify the other of any change to such details within 24 hours of such change.
That the father and mother together with their servants and agents be and are hereby restrained from:-
a)denigrating the other to and in the hearing of the children or either of them or allowing another to engage in such conduct; and
b)discussing family law matters with the children, including but not limited to their relationship particulars and the alleged disputes and alleged acts of violence between them.
The father and mother utilise a Communications Book detailing bona fide information pertaining to the children’s health, education, social activities which shall move with the children between households.
The mother continue to attend upon her treating Psychiatrist as recommended by such psychiatrist and is to follow all reasonable recommendations to comply with medication as prescribed.
The Independent Children’s Lawyer be discharged at the expiration of three months from the date of these orders.
As soon as practicable after the making of these orders the Independent Children’s Lawyer meet with the children for the purposes of explaining the orders to them and the father deliver the children to the office of the Children’s Lawyer or such other location nominated by the Independent Children’s Lawyer for the purposes of that meeting.
The father do all things, including but not limited to driving the children to and from appointments, and sign all documents necessary to facilitate the children’s involvement in family therapy with the mother, such therapy to be nominated by the Independent Children’s Lawyer.
The order made by Federal Magistrate Connolly on 9 April 2010 placing the children’s names on the Airport Watch List remain in full force and effect.
Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document which is annexed to these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hengki & Nadya has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1985 of 2010

Ms Nadya

Applicant

And

Mr Hengki

Respondent

REASONS FOR JUDGMENT

Introduction

The father and mother met and married in a Muslim ceremony in Country 1 in 2001. It was an arranged marriage and they had another ceremony in Australia in March 2002.
The father who is 58 years is from Country 2. He has lived in Australia since 1982.
The mother who is 41 years is from Country 1 and came to live in Australia in 2002 following the marriage. She came to Australia for the first time in 2002 shortly after the birth of their first child. She has no family in Australia. The mother had the assistance of a Country 1 interpreter throughout the proceedings.
There are three living children of the marriage. J who is 10, M who is 9 and Y who is 7. The parties had a fourth child, F, who was born in July 2010, who passed away shortly thereafter. The children live with the father in what was the former matrimonial home. After the commencement of the trial before me the parties reached an agreement with respect to property matters and I made orders by consent on 8 August 2012 which will enable the father to retain the former matrimonial home.
This matter has a long and some what sad history. The father deposed that when he travelled to Country 1 for the marriage the mother’s family would not permit him to spend time with her because she was already mentally ill and they did not want him to find out about her mental illness until after the marriage. He said he was told later that she had suffered head injuries as a result of a fall which was ultimately the cause of her mental health issues.
He said that he was tricked into the marriage but that despite being deceived by the mother’s family he says he was committed to making the marriage work and believed that he would be able to assist the mother to overcome her mental health issues.
It is the father’s evidence that the mother’s mental health began to deteriorate in 2007, he says that she refused to eat and “began behaving very erratically and talking excessively and loudly.” The father states that he took the mother to the hospital as a result of her weight loss and that she was hospitalised for 2 days before being transferred to another hospital where she stayed for a further 5 days. Upon her release from hospital the mother began seeing Dr B, a psychiatrist, and was placed on medication.
In 2008 the father said he took the mother to Mecca in the hope that it would make her a good mother. The children stayed with the mother’s family in Country 1. By the time the parties returned to collect the children from Country 1 their relationship had broken down.
The father says that the mother returned to Australia with two of the children on 13 January 2009 without his knowledge. In August 2009 the parties reconciled and the mother and the two children in her care returned to the former matrimonial home. During the parties’ reconciliation the mother became pregnant with the parties’ fourth child.
The parties separated again some two months later when the mother, who was two months pregnant at the time, left the former matrimonial home with the three children. On 9 April 2010 orders were made by consent by Connelly FM providing for the children to live with the father and spend time with the mother each weekend, with changeover to take place at a police station. The mother’s time with the children was to increase to each weekend from after school on Friday until the commencement of school on Monday once she obtained suitable accommodation. For a period of approximately 12 months the children spent three nights per week with the mother in accordance with the orders.
In July 2010 the mother gave birth to the fourth child of the marriage F. F was born with a chromosomal abnormality and passed away in August 2010.
The mother’s mental health again deteriorated and in early April 2011 the father and mother agreed and signed an agreement to the effect that the children would live with the father and spend unspecified periods with the mother. Notwithstanding that agreement the children did not spend any time with the mother until orders were made by Cronin J on 24 May 2011 which provided for the children to spend time with the mother at the X Shopping Centre from 3.45pm until 5.45pm each Monday and Thursday in the presence of a representative from N Women’s Services.
On 31 May 2011 the mother was admitted to S Hospital and diagnosed with schizophrenia. She was discharged on 4 July 2011. The mother did not see the children for approximately 9 months following her admission to S Hospital. The mother’s financial affairs were placed in the hands of the State Trustees however she deposes that she has recently moved to the Independence Program at State Trustees with a view to resuming control of her financial affairs.
In accordance with orders made by Cronin J on 13 January 2012 the children now spend time with the mother each alternate Monday from 4:00pm to 5:30pm. Contact occurs at ‘C Playground’ in Suburb D and is supervised by a staff member from E Women’s Services. The orders also provide for the children to communicate with the mother by telephone each Friday from 5:00pm to 6:00pm. It is common ground that J and Y refuse to speak with the mother on the phone.
The issues I must determine are:
·    Does the time the children spend with the mother need to be supervised;
·    How much time should the children spend with the mother; and
·    Where should the children spend time with the mother.
The mother’s illness has had a significant impact on the parties and the children and is at the heart of these proceedings. The mother’s mental health and how that impacts upon her capacity to care for the children is central to the issues I must determine.

Documents relied upon

The mother relies on the following documents:

The Amended Initiating Application filed 28 March 2012;
Her trial affidavit filed 28 March 2012;
The affidavit of Ms F, Case Manager at E Women’s Services filed 1 August 2012;
The affidavit of Ms G, Children’s Worker at E Women’s Services filed 7 August 2012;
Her affidavit filed 14 December 2011; and
The 2 page document titled as “Order 16 of the Orders dated 29 February 2012”;

The father relies on the following documents:
·    The Amended Response filed 23 February 2012;
·    His trial affidavit filed 18 June 2012;
·    His affidavit filed 11 January 2012; and
·    The Case Outline document filed 3 August 2012;
The Independent Children’s Lawyer (“ICL”) relies on the following documents:

The Family Report of Ms H dated 29 June 2012;
The Family Report by Dr K dated 25 November 2010;
The letter by Dr K dated 19 April 2011;
The Psychiatric Report of the mother by Dr L dated 9 July 2012; and
The Outline of Case filed 2 August 2012;

THE COMPETING PROPOSALS

The ICL proposes that the father have the sole parental responsibility for the children save that the father shall use his best endeavours to advise the mother in writing of any long term decisions he intends to make, that he seek the mother’s written response thereto and consider, by reference to the best interests of the children, any such response prior to making a decision; and to advise the mother in writing of his ultimate decision.
The ICL also proposes that the children continue to live with the father and spend time with the mother as follows:
·    Each Sunday for 3 hours to be agreed and failing agreement from 10:00am to 1:00pm and that such time continue until the mother obtains longer term housing;
·    Thereafter, for 5 hours on either a Saturday or Sunday from 10:00am to 3:00pm for a period of 6 occasions or until the mother obtains adequate bedding for the children to spend time overnight;
·    That upon the mother confirming to the father that she has adequate bedding the time increase to each alternate week from 10:00am Saturday to 5:00pm Sunday, in the alternate week each Wednesday evening from 5:00pm to 7:30pm, half of the school term holidays and one half of the long summer holidays in alternating years.
·    On the children’s birthdays for a period of not less than 3 hours at times to be agreed and failing agreement from 3:30pm to 7:00pm on a weekday and 1:00pm to 5:00pm on a weekend.
·    On the mother’s birthday for 3 hours at times to be agreed and failing agreement from 3:30pm to 6:00pm on a weekday and 1:00pm to 5:00pm on a weekend.
·    On Mother’s Day from 5:00pm Mother’s Day eve to 6:00pm Mother’s Day.
·    On Eid-ul-Fitr festival for a period of 3 hours and in default of agreement from 4:00pm to 7:00pm;
·    All reasonable times by telephone, email, Skype, other electronic modes of communication, letters and cards, with the father to facilitate such communication;
·    And such other times as agreed in writing between the parties.
The ICL proposes orders for the mother’s time to be suspended if such time falls on Father’s Day or the children’s birthdays, in which the ICL seeks the same times as proposed for the mother.
It is proposed that the father be at liberty to communicate with the children while they are in the mother’s care and that changeovers occur at the mother’s residence or such other place as may be advised by her and agreed by the father. The ICL initially proposed that failing agreement changeover should take place at the Police Station closest to the mother’s residence however in final submissions the ICL proposed that failing agreement changeover should take place at a McDonalds Restaurant nominated by the mother rather than a Police Station.
The ICL suggests orders that each party keep the other informed of the name and address of the children’s health professionals by email or letter; and except in an emergency or in the case of the need for urgent treatment, advise the other in advance of any initial medical appointments and the purpose of such appointment by email, letter or text message; and keep each other informed of any significant medical injury, illness or hospitalisation.
That the father authorise the mother to receive copies of school reports, newsletters and the like and that the mother be permitted to attend school events and functions of extra-curricular activities.
That each party keep the other advised of their residential address and contact numbers within 24 hours of a change thereto.
Orders restraining the parties from abusing, insulting, belittling, rebuking or otherwise denigrating the other, from discussing the Court proceedings with or in the presence of the children and from permitting any other person from doing so.

Finally, the ICL proposes that the parties utilise a Communication Book detailing bona fide information with respect to the children’s health, education, social activities and such book shall move between the parties’ households.
The mother adopted the ICL’s proposals.
The father on the other hand has strong reservations about the mother’s mental capacity to care for the children unsupervised and he proposes the following arrangements for the children’s time with the mother:
·    Supervised time each alternate Monday from 4:00pm to 5:30pm for a period of six months;
·    Then, supervised every Monday from 4:00pm to 5:30pm for a further period of 6 months;
·    Thereafter as agreed between the parties;
·    On Eid-ul-Fitr festival for a period of 2 hours and in default of agreement from 4:00pm to 6:00pm;
·    On the Eid-ul-Adha festival for a period of 2 hours and in default of agreement from 4:00pm to 6:00pm;
·    And as otherwise agreed between the parties; and
·    That the mother communicate with the children by telephone from 7:30pm to 8:30pm each Friday with the mother to initiate the call and the father to facilitate such call;
During the course of the hearing the father changed his position proposing that the wife spend supervised time with the children each Monday from 4.00pm to 5.30 pm for a period of two years.
The father proposes that changeovers occur at the C Playground at Suburb O and that the mother be restrained from obtaining copies of school reports, notices, newsletters, photographs, forms and other information or documents from the children’s school directly and that the mother obtain these documents by requesting them from the father who will provide them within 7 days of such a request.
The father further proposes that the mother notify him of her intention to attend any school functions, events, parent/teacher interviews at the children’s school at least 7 days before the event.

Legal Principles

The objects which underlie Part VII of the Family Law Act 1975 (Cth) relating to children are set out in s60B(1) of the Act as follows:
a) Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles which underlie those objects are that unless it would be contrary to the best interests of a child:
e)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
f)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
g)Parents jointly share duties and responsibilities concerning the care, welfare and development about the future parenting of their children; and
h)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture)
The paramount consideration when making a parenting order is the best interests of the particular child or children the subject of that order (s60CA) in the particular circumstances of the case. The Court must consider both the primary and additional considerations set out in s60CC(2) and (3) of the Act in light of the particular circumstances of the case and the analysis of those considerations must be consistent with the objectives of the Act and the principles underlying those objectives.
When making parenting orders there is a statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child who was a member of that parent’s family or family violence. The presumption may also be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. It is the presumption of equal shared parental responsibility that is the trigger for s65DDA which requires the Court to consider whether it is in the best interests of the child to spend equal or substantial time with each parent and whether it is reasonably practical for the child to do so. In this case the father, the mother and the ICL agree that the father should have sole parental responsibility. The ICL also proposes that the father advise the mother of decisions he is intending to make and those he has ultimately made. Given the history of this matter, the mother’s mental health issues and her more limited command of English, I am satisfied that in this case it would be appropriate for the father to have sole parental responsibility. I am also satisfied however that the mother is concerned for the welfare of the children and she should be kept informed in relation to the decisions the father is making in relation to their welfare. On that basis as the presumption of equal shared parental responsibility does not apply it is not necessary for me to consider whether, firstly, it would be in the children’s best interests or reasonably practical for them to spend equal time with the father and the mother or, if not, whether it would be in their best interests and reasonably practical to spend substantial time with the mother.
In so far as I am required to make findings I do so on the balance of probabilities in accordance with s 140 of the Evidence Act 1995(Cth) having regard to the nature of the case, the subject matter of the proceedings and the gravity of the matters alleged. Having said that, I do not believe that credit is a significant issue in this case. The evidence of both parties was, from my observations of the parties, both frank and open.

The Issues

The mother’s mental health

The father’s case is that the mother is mentally ill and that the time she spends with the children should be supervised. The basis upon which he puts his case appears to be that the children are not comfortable with the mother because of her mental illness and that her mental illness impacts upon her capacity to care for them.
I am satisfied having heard his evidence that he has a very limited understanding of mental illness and the possibilities for treatment of that illness. From the father’s point of view once mentally ill always mentally ill and it was his case that on that basis it would now be a risk and would continue to be a risk for the children to spend unsupervised time with the mother. The father said that he was not reassured by the evidence of the mother’s treating psychiatrist because he knew the mother better.
He has based his case on the proposal that the mother’s time with the children could be unsupervised after two years upon the fact that J would be 13 years old in November 2014 and able to protect himself and his brothers from the mother if her mental health deteriorates.
That however is not consistent with the expert evidence. The mother’s treating psychiatrist Dr L prepared a report which was annexed to her affidavit filed 2 August 2012. She was not required for cross-examination.
Dr L is a consultant psychiatrist employed by the P Health Service of the Q Hospital. She has been the mother’s treating psychiatrist since February 2012. For the purposes of her report she referred to the mother’s current medical records, discharge summaries and hand over notes from R Hospital where the mother had previously received treatment.
Dr L confirmed the mother’s diagnosis of schizophrenia. She also said that the mother had been discharged from S Hospital on a Community Treatment Order but that she has subsequently been discharged from her Community Treatment Orders by a Mental Health Review Board on the basis of her improved insight into her illness and compliance with her prescribed treatment.
She described the mother as having made “…significant improvement in her mental state and recovery of her mental illness over the last year.” She said that the mother had “…been compliant with her antipsychotic medications.” She described the mother as currently displaying “…an appropriate level of insight and understanding into her illness. She has reported remission of her auditory hallucinations and psychotic symptoms and she has been free of any active psychotic symptoms over the last ten months.”
She said that the mother would be required “to take psychotropic medications and needs psychiatric follow up for the foreseeable future in order to remain stable in her mental state. In the context of her good response to medications, good insight into her illness and well engagement with mental health services, [Ms Nadya] is most likely to have a favourable prognosis in the future.”
Although she considered a formal assessment of the mother’s parenting capacity to be outside her area of expertise she did say that “...over the last year there has been no evidence observed by her treating team that [Ms Nadya] has posed any risk to herself or to others. In my opinion [Ms Nadya] does not pose a risk to herself or others at present.”
I am satisfied that the mother is complying with her recommended treatment and taking the prescribed medication. Dr L says that the mother has some insight into her mental illness. The mother said that if she thought she was getting sick again she would contact her social worker and she was prepared to authorise her treating psychiatrist to notify the father in the event that she formed the view that the mother posed a risk to the children.
I am satisfied that, notwithstanding the father’s concerns about the mother’s mental health, she does not presently pose a risk to the children and that it is not necessary for the time she spends with the children to be supervised.

Section 60CC

It is helpful in this case to otherwise address the issues in the context of the s60CC considerations.

Primary Considerations

(a) the benefit of the child having a meaningful relationship with both of the child’s parents;

Ms H, the Court appointed Family Report writer’s observations of the father and the children clearly demonstrate that they have a meaningful relationship, and subject to her reservations about his attitude to the mother and his capacity to promote the children’s relationship with her, she says the children are thriving in his care.
She described the current relationship between the children and the mother as “strained, distant, and not mutually responsive…” and that it did not “…indicate a strong bond between them.” However as I will set out in more detail later in my reasons there are some positive signs of improvement.
Notwithstanding that to be the case, she concluded that ideally it would be in the children’s best interests to have a meaningful relationship with both their parents.

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

The mother alleges that the father was physically abusive to her during the marriage. She described the father as slapping her in the face and head, hitting her on the body and kicking her. She deposed that on occasions the father would slap her ears which resulted in a continuous ringing in her ears and that the father had slapped her so hard her lips had turned blue. She said that the children witnessed the father’s violence. She also said that the father was verbally abusive during the marriage threatening to kill her and chop her into pieces or words to that effect.
The mother deposed that the father was regularly physically and verbally abusive to the children pulling their ears and slapping them.
In January 2009 the mother applied for an intervention order against the father. The father contested that application however in mid 2009 the matter was settled on the basis of the father signing an undertaking not to commit any acts of family violence against the mother. In January 2010 the mother reinstated her application for an intervention order because she said the father had been abusive towards her in breach of his undertaking. It was listed for a contested hearing on 28 July 2010 and on that date orders was made against the father prohibiting him from committing any acts of family violence against the mother for a period of 12 months.
On 20 July 2011 the mother obtained an interim intervention order against the father which was to expire on date of the contested hearing, being 12 August 2011. The mother says that she did not proceed with that application because she was concerned that there were gaps in her memory as to what had occurred.
The father in his affidavit filed 11 January 2012 denies the mother’s allegations of family violence against the children but has not denied the allegations of family violence against the mother.
In my view the mother’s account of the history of family violence has a ring of truth to it however the parties have now been separated for some years and there are no recent allegations of any violence against the mother by the father. It is unlikely in my view on the basis of more recent events that the children will be exposed to any physical violence against the mother. The risk of any violence directed towards the mother would in any event be ameliorated by changeover taking place in a public place.
Even if the mother’s allegations of the father’s violence towards the children during the marriage were true, Ms H’s observations of the children’s relationship with their father would suggest that they are not currently at risk. Ms H describes the interaction between the father and the children as “…warm, spontaneous and fun, indicating the children have a positive and close relationship with their father.”
The father alleged that the mother was aggressive and abusive towards him during the marriage and that her behaviour is likely to have been witnessed by the children. After Ms H had interviewed all three children J asked to speak to her again and she said that he “…remembered my mother was violent to me and did some violence to my father…pulling his ears and throwing telephone books at him.” It was her understanding after she attempted to clarify his comments that he had witnessed an incident of this nature on at least one occasion but that he said the mother had not been violent towards him or his brothers.
For reasons which I will refer to in some detail later in these reasons I have reservations about the children’s complaints about the mother’s behaviour towards the father. Whatever the history of her relationship with the father, I am satisfied that there is no real risk of violence by the mother towards the children.
It is of course the father’s case that the children may be, as a result of the mother’s mental illness, at risk of both physical and/or psychological harm in the mother’s care. However I am satisfied on the evidence before me that the mother does not pose a risk to the children.

Additional Considerations

(a) any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views;

All three children told Ms H that they did not want to spend any additional time with the mother and that they wanted to continue spending time with her at C Playground. M who is the only one of the three children who speaks to the mother on the phone each week said he did so because his father forced him to.
However it was clear from the evidence of the father that despite the fact that he says he supports the children having a relationship with the mother he does G to promote that relationship and to the contrary, he has a very negative view of the value of that relationship or any part the mother might play in the children’s lives.
Ms H’s conclusion was that the father’s “…behaviour, conscious or unconscious, subtle or obvious, direct or indirect, must be considered as a major factor in the children’s rejecting behaviour towards their mother.” It was her view that the father has “clearly exposed the children to his own strong views, inappropriately discussed court proceedings and other matters with them and it is highly likely he has denigrated the mother in front of the children” and that the children have now become strongly aligned with the father’s view of the mother parroting the father’s complaints about the mother.
This is consistent with my observations of the father’s evidence. Although the father on occasions said the right things about the importance of the children having a relationship with the mother those views were not consistent with his criticisms of the mother and his quite dismissive attitude about the importance of that relationship for the children. When asked about the good things the mother might bring to the children’s lives he said “…nothing completely nothing...”
Although the father said that he did not have to tell the children negative things about the mother because they could see the problems themselves, I am satisfied that he discusses his views of the mother and the proceedings with the children, including telling them that their mother was trying to take his money. On more than one occasion the father left the Court to answer a call on his mobile phone. When asked about these calls he said it was M who had called wanting to know what was happening in Court. When he was asked whether he had discussed the proceedings with the children when he got home he said “…of course they’re very clever...” and when pressed on the specific details of his conversation with the children he said that “…they not happy…don’t want to go to her house.”
I am satisfied that the father does not value the mother’s relationship with the children and that whether consciously or unconsciously this is conveyed to the children.
The children are now 10, 9 and 7 years of age. I am satisfied that the views that they express have been strongly influenced by the views of the father with whom they are firmly aligned. In these circumstances and in that context I place G weight upon their views or the wishes the children have expressed either to the father or Ms H with respect to their relationship with the mother and the time they spend with her.

(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and
(ii) other persons (including any grandparent of other relative of the child
(f)the capacity of:
(i) each of the children’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the children including their emotional and intellectual needs;

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

Both parties assert that they were children’s primary carer during the marriage. Whether it was the father or the mother who was the children’s primary carer prior to separation Ms H described the children as having “…experienced significant and ongoing disruption in their relationships with each of their parents at significant developmental stages since the parents first separated in 2008.” Whilst there was some disruption in the children’s relationship with the father in the period following separation, the disruption in the mother’s relationship with the children, particularly in the last two years, through no fault of her own, has been even greater. It includes a period of approximately nine months following the mother’s admission to S Hospital when the children did not see her at all. Although the mother had no involvement in the children’s lives for a significant period she has demonstrated a strong commitment to re-establishing and developing her relationship notwithstanding the significant obstacles to that relationship and in particular the father’s lack of support for the relationship.

This is consistent with the evidence of Ms H. Ms H said that the mother was pleased to see the children and greeted them warmly but that they all indicated“…both in their meetings with the family consultant and by their behaviour in the room when their mother was present, that they do not wish to interact with her and appear to have rejected their mother.” She described the relationship between the children and their mother as “…strained, distant, and not mutually responsive” and that it did not indicate a strong bond between them. She did however report that at the conclusion of her observations of the mother with the children the mother reminded the children that she would be seeing them the following Monday and attempted to hug them and that although the children resisted her embrace both they and the mother were smiling and laughing and her attempts to hug the children appeared to be like a game in which they were all participating.
This was also consistent with the evidence of both Ms F and Ms G who both described the mother as having been dedicated to the visits with the children. Both Ms F and Ms G described the mother as being “patient, gentle and persistent” without being “pushy”.
The mother said that prior to separation she communicated with the children in a mixture of Country 1 and English. Ms H described the mother as having only limited English and she said that the children did not speak Country 1, which limited their communication. The mother gave her evidence with the assistance of a Country 1 interpreter. She said that she had been attending English classes since August last year and that her English was improving. This would accord with my observations of her evidence where it appeared to me that she had some understanding of some of the questions she was asked before they were explained to her in Country 1.
The mother was able to talk about her mental illness and the impact it might have on the children. She said that she had tried to speak to the children about her mental illness and was very positive about being involved in some therapy that would help the children to understand the nature of her illness. When asked what she would do if the children rejected her, the mother said that she would try her best to be patient with the children. It is clear from Ms H’s observations of the mother with the children that, despite the difficulties she has experienced in re-establishing her relationship with the children, she has been patient and that there has been a gradual improvement in the children’s interaction with her. The mother, unlike the father, was also able to acknowledge when criticism of her actions might be justified. For example, she readily conceded that she should have informed the father when J was burnt by hot water from the kettle when he was in her care. She also acknowledged that the children were upset by the letter she sent them when she was unwell.
I am satisfied that the mother has demonstrated a responsible attitude to her responsibilities as a parent and in particular has shown in very difficult circumstances a very real understanding of, and capacity to meet, their emotional needs. However, although I am satisfied that the father takes his responsibility for the children’s physical care and their education very seriously, my observations of the father’s evidence is that he has G or no insight into the effect his attitudes about the mother may have upon the children or what the long term effects of his failure to promote their relationship with the mother may be.
It begins and ends for the father with the proposition that the mother is sick. He dismissed the possibility of family therapy on the basis that it was a waste of time and that he was too busy. He also opposed Ms H’s suggestion that a doctor explain the mother’s mental illness to the children on the basis that they were too busy with their education.
As I have already found, the father places G or no genuine value on the mother or what she contributes to the lives of the children. Another example of this was the evidence he gave about the fact that on a recent occasion when he arrived to collect the children they were on one side of the room and the mother was on the other side of the room. The only purpose of that evidence was to demonstrate that the children had not enjoyed their time with the mother and did not want to be with her. The father’s evidence or the import of that evidence was disputed by both the mother and Ms F who said that she was waiting outside with the children for a matter of minutes to facilitate handover and that it had nothing to do with the children not wanting to spend time with the mother and preferring to spend time with Ms F as suggested by the father.
The father said on a number of occasions that I should not change the orders because of the inconvenience to him and the added burden that it would place upon him if I were to do so. He also said that it would be inconvenient for the children. I am left with G confidence that he is able to put the children’s need to re-establish a relationship with the mother ahead of his own needs or his perception of what is in their best interests.
The husband was also critical of the mother’s capacity to physically care for the children during the marriage because she was “sick”. He said that during the marriage he had to cook and clean and do everything for the children because the mother was in bed most of the time. The mother denies that this was the case. She acknowledges that she had some difficulty caring for the children before she was admitted to S Hospital but that she has increasingly been caring for herself since her discharge. She is now living in transitional accommodation cooking and looking after herself. She uses public transport to go shopping and cooks and cleans for herself and organises her own finances. This is consistent with her move to transitional accommodation and the proposed move to her own accommodation.

(c)the extent to which each of the child’s parents has taken or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) spend time with the child; and
(iii) to communicate with the child;

For reasons beyond her control the mother has not had the opportunity to participate in decisions about major long term issues. Even if she had wished or been able to do so it is most unlikely that this would have been facilitated by the father.
The father’s proposals and his evidence make it very clear that he does not want the mother involved in making decisions with respect to the children. Not only does the father not want the mother to be involved in the decision making, it is his case that she should not be permitted to obtain copies of school reports, notices, newsletters, photographs or other information directly from the school. He does propose that the mother be permitted to attend the school but that she should provide him with 7 days notice of her intention to do so.
The mother has accepted the ICL’s proposal with respect to the father having sole parental responsibility which of necessity will preclude her making decisions about major long term issues. I am however concerned by the father’s evidence with respect to the children’s medical treatment and their education. The father’s evidence was that, as the mother was not making any financial contribution or paying any of the medical bills, she had no right to have any input. He was also very dismissive of the possibility that there might be any benefit to the children for the mother to have any involvement in their schooling. To the contrary, it was his case that it would be embarrassing and disruptive for the children. Whilst he proposed that the mother be permitted to attend school functions, events or parent teacher interviews, he wanted her restrained from obtaining copies of school reports, notices, newsletters, photographs and other information directly from the school.
Given the father’s attitude to the mother’s involvement in the children’s schooling I have no confidence that he would provide her with the documents or information that would enable her to attend school functions or events, making his proposal that she be able to attend the school for such events somewhat meaningless.
I am satisfied in these circumstances that the father should be required to authorise both the children’s medical practitioners and schools to provide information directly to the mother. I am satisfied that it is appropriate that the mother be provided with information with respect to any health professionals treating the children and medical appointments and that the father be required to authorise both the children’s schools and all health professionals to provide information to the mother. I am also satisfied that the mother should be permitted to attend upon those health professionals and parent teacher interviews by arrangement with the school and the various health professionals if she wishes to do so.

(ca)the extent to which each of the child’s parents has fulfilled or failed to fulfil, the parent’s obligation to maintain the child

The father makes much of the fact that he is responsible for supporting the children without any assistance from the mother. In a perfect world one might expect both parents to contribute to the support of their children. Although it has been left to the father to support the children I am satisfied that in all of the circumstances of this case the mother’s inability to contribute does not reflect poorly upon her or in any way diminish what I find to be her genuine commitment to the welfare of the children.
The mother receives a disability pension as does the father. The father has continued to live in the former matrimonial home whereas the mother is still in the process of establishing herself in her own accommodation. The evidence does not suggest that the mother has failed to contribute to the support of the children in circumstances where she has had the capacity to do so.

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the children of any separation from:
(i) either of their parents or any other child or other persons with whom they have been living; or
(ii) any other child, or other person (including any grandparent of other relative of the child),with who he or she has been living

Although the time the mother proposes she should spend with the children is an increase on the time that she currently spends with them and the proposal envisages a gradually increasing regime of time, the times proposed will not in my view amount to a separation from the father in any real sense and is not likely to have any impact upon their relationship with him.

(e)the practical difficulty and expense of the child spending time with and communicating with a parent and whether the difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

The father made various complaints about the mother’s proposals for spending time with the children based upon the costs of having to transport the children and the inconvenience of having to do so. It was his case that the mother should continue to spend time with the children at C Playground. This was consistent with what the children told Ms H. I am left with the distinct impression that this has to do with the father’s desire not to have to drive too far rather than any independently held concern on the part of the children as to where they should spend time with the mother. This was consistent with the father’s evidence that, notwithstanding the orders, he had not filled out the forms for the T Street Children’s Contact Service because it was too far away and not convenient for him.
The father also said that the children did not want to spend time with the mother where she is currently living. As I have previously said, in the circumstances of this case I do not place great weight upon the wishes of the children. This example of what the father says are the children’s wishes is a good example of why this is the case. The children have not spent time with the mother other than at C Playground. They have certainly not visited her at her present accommodation and it is difficult to see in those circumstances how they could express the views they do independently of their father’s views.

(g)the maturity, sex, lifestyle and background(including lifestyle, culture and traditions ) of the child and either of the parents;

The father comes from a Country 2 background whereas the mother is from a Country 1 background. Although the children spent time with the mother’s family in Country 1 when they were young, the mother says that lately they have had not contact with her family. When the mother was asked why that had happened she said that “…somehow my children do not like my family.” There is no suggestion by the father that he has attempted to maintain the children’s contact with the mother’s family and given his belief that he was tricked by her family into marrying the mother when they knew that she was mentally ill I am not surprised that he has not done so. I have already found that the father has exposed the children to his negative views about the mother and in my view it is most unlikely in those circumstances that he would have kept his feelings about the mother’s family from the children.
I am satisfied that the only way the children will either re-establish and maintain any relationship with the mother’s family or develop any understanding of their Country 1 heritage is through the time they spend with the mother. In my view, there are more likely to be opportunities for them to do so if they are spending more extended periods with the mother and spending time with her in a more natural environment. Time in her own home would allow her to share her way of life in a way that is not possible on the basis of the current arrangements.

(j) any family violence involving the child or a member of the child’s family;

(k)if a family violence order applies, or has applied, to the child of a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i)     the nature of the order;
(ii)    the circumstances in which the order was made;
(iii)   any evidence admitted in proceedings for the order;
(iv)    any findings made by the court in, or in proceedings for, the order;
(v)     any other relevant matter;

Whilst there does appear to be a history of family violence and intervention orders have previously been made, I am satisfied that it is not likely to be an issue in terms of the children’s ongoing relationship with the mother. There has been no order in force since 12 August 2011.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

In this case the ICL and the mother propose that upon the mother obtaining suitable and more permanent accommodation and appropriate bedding for the children that they should spend time with her from 10.00am Saturday until 5.00pm Sunday. It is possible that if all goes well the mother may seek additional time and that in the absence of agreement there may be further proceedings. Although it might be preferable to avoid the possibility of further proceedings it is difficult in circumstances where the mother is just starting to re-establish her relationship with the children to make orders which take into account every contingency.
I also have some concerns given the father’s attitude to the children’s relationship with the mother and his failure to comply with previous orders with respect to the mother spending time with the children at the T Street Children’s Contact Service as to the likelihood that he will not comply with any orders that I make. Whilst I can attempt to make orders that will avoid further proceedings I cannot predict whether the father will comply or ensure his compliance in anticipation of him possibly failing to comply. I note that the father has said that he will comply with any orders I make and I expect him to do so.

(m) any other fact or circumstance that the court thinks is relevant.

The mother has lived at E Women’s Service since her discharge from S Hospital, recently moving to transitional housing in anticipation of a move to her own independent accommodation in the future. Ms F, the Case Manager at E Women’s Service, gave evidence that the mother would continue to receive support and assistance during the time she spends in the transitional housing. She will continue to have support from E Women’s Service although on a needs basis when she obtains her own accommodation.

Parental responsibility

Conclusion

Ms H described the mother’s affect as “significantly flat, possibly a side effect of her medication…” She said that during the interview the mother was polite and co-operative “…answering questions to the best of her ability, although not providing information spontaneously and seldom able to offer clarifying information, when invited to do so.” My observations of the mother were that she was at times a G flat however there were also times when she was talking about the children when her whole face would light up and she would be quite expressive and animated.
It has no doubt been very difficult for the mother to re-establish her relationship with the three boys, who she clearly loves, particularly in the face of the father’s lack of support or encouragement. I am however comforted by the evidence, and in particular the evidence of Ms G and Ms F, that there has been some, albeit limited, progress. Ms G was not required for cross examination. She is a Children’s Worker at E Women’s Service and in that role has regularly supervised the mother’s time with the children at C Playground. She reported that the play centre was not an “…ideal venue for quality interaction between [Ms Nadya] and her children as many of the activity areas are suitable for children only and there are limited areas for quiet play and conversation.” However she also said that “…conversation … has taken time to develop but [Ms Nadya] has been persistent without being pushy and in the most recent visits conversation flowed more smoothly.”
Ms F also said that C Playground had not been an ideal venue for the mother to spend time with the children. When she was cross-examined by the ICL she said that the children were also distracted during the time with the mother by the activities at C Playground. Ms G reported that “…over the course of the visits, I have witnessed increased communication between the children and [Ms Nadya], as they talk about the children’s interest in the activities in the play centre or play games together.” Ms F said that over time the children had become more comfortable in the mother’s presence.
In her report Ms H recommended as follows:
If the Court was to determine the children should spend time with their mother, consideration should be given to the children spending time with their mother each fortnight, supervised at a Children’s Contact Centre such as [T Street], in order for there to be an opportunity for the relationship between the children and their mother to progress. Given that a contact centre is not able to provide supervision indefinitely, the future regarding where the children spend time with their mother will be based on the progression, if any, of the relationship as well as the mother’s mental health status.
At that time Ms H had not had the benefit of either the evidence of Dr L or Ms G and Ms F. Having had the benefit of Dr L’s evidence that the mother did not pose a risk to the children, Ms H said that there was no need for supervision of the mother’s time with the children and although it was difficult to predict the progress, the timetable proposed by the ICL was in all of the circumstances reasonable. She did however say that although supervision might not be required, it would be of assistance at least initially if there was support for the mother both in the planning and preparation for the children’s visits and when the children first arrived. It was Ms F’s evidence that while the mother is in transitional accommodation, although the resources for ongoing supervision are limited, there is some assistance available to the mother as recommended by Ms H. Once she moves to independent accommodation contact with the mother is on a needs basis, however Ms F could not say when the mother would be likely to move to independent accommodation. In those circumstances I am satisfied that at least in the short term, as it is expected to be some time before the mother moves to independent accommodation, there will be some assistance available to the mother as anticipated by Ms H.

I am satisfied that there has been some progress in the relationship between the mother and her children under the present arrangements, but that it would be difficult for the mother to develop a meaningful relationship on the limited basis proposed by the father. Ms H said that there was already evidence of a significant detrimental effect upon the children as a result of the breakdown in their relationship with the mother and their father’s negative attitude to the mother and that relationship notwithstanding the arrangements that are currently in place. It was her evidence that the children, and in particular the youngest child Yusuf, are at risk of “significant harm” if the father’s negative views continue to be dominant and that the children need to be given the opportunity to see a different side. I am satisfied that C Playground is not a suitable venue for the mother to spend time with the children and that it is important for that relationship to develop in a more natural home environment.
In all of the circumstances I am satisfied that the ICL’s proposals are in the best interests of the children and propose to make orders as proposed by the ICL and accepted by the mother. I have had regard to the fact that the father is primarily responsible for the children, both physically and financially, and that transporting the children to enable them to spend time with the mother in accordance with the orders will impose a significant obligation upon him. However I must weigh this against what I consider to be the importance to the children’s welfare of rebuilding their relationship with the mother.
Ms H also recommended that the mother and the children attend family therapy. The father was very negative about the possibility of attending family therapy and opposed to someone explaining the mother’s mental illness to the children. I am satisfied that the children would benefit from family therapy if only to counter the negative views of the mother promulgated by the father. I would expect them to gain some understanding of their mother’s illness in the context of that therapy. It was put to Ms H that the mother and children attend the U Centre and Ms H agreed that it would be suitable. I propose to make orders requiring the father to do whatever is required to facilitate the children’s involvement in family therapy with the mother including driving them to appointments if necessary. In light of the father’s negativity I do not propose to require his attendance, however I would suggest that he also participate in that family therapy if, as he says, he is genuinely committed to the children having a relationship with the mother.
Finally it was the father’s case that I should discharge the watch list order preventing the parties from taking the children overseas. I am conscious that the mother’s family are all in Country 1 and that she may at some time in the future want to take the children to visit her family, however it is early days and before such a trip could be contemplated there would have to be significant developments in her relationship with the children.
The father did not have specific plans for overseas travel although he said that the children were “like their daddy” and “want to travel”. Although if I do not discharge the watch list order the parties will need to return to court if either of them wish to travel overseas, I propose to take a cautious approach and leave the watch list order in place. In my view there would be significant harm to these children if either the father or the mother were to remove the children from Australia and away from the other parent.
Finally, as submitted by the ICL I propose to make an order that the ICL explain the orders to the children and I will discharge the appointment of the ICL at the expiration of three months from the date of these orders. That will enable the ICL explain the orders to the children and facilitate the mother and children attending family therapy.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 2 November 2012

Associate:

Date: 2 November 2012

[2012] FamCA 907

2 November 2012

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