Pagett and Pagett

[2020] FamCA 402

FAMILY COURT OF AUSTRALIA

PAGETT & PAGETT [2020] FamCA 402

FAMILY LAW – CHILDREN – INTERIM – COVID-19 – Where the parties have previously been residents in an Asian country – Undertaking to discontinue parenting proceedings in City A – Where the father lives in Queensland and the mother in New South Wales – Where there are allegations of risk in both households – Order for children to live with the father in Queensland – Order for time with the mother in New South Wales – Where overnight time with the mother is to be spent at the maternal grandparents house – Orders for random urinalysis testing.

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996.

Family Law Act 1975 (Cth) s 111CD

McCall & Clarke [2009] FamCAFC 92
Moose & Moose [2008] FamCAFC 108

APPLICANT: Ms Pagett

RESPONDENT: Mr Pagett

FILE NUMBER: BRC 14097 of 2019

DATE DELIVERED: 25 May 2020

PLACE DELIVERED: Sydney (for Brisbane Registry)

PLACE HEARD: Sydney (for Brisbane Registry)

JUDGMENT OF: Rees J (via video link to Brisbane)

HEARING DATE: 20 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dart

SOLICITOR FOR THE APPLICANT: Fitzgerald Lawyers

COUNSEL FOR THE RESPONDENT: Mr Bunning

SOLICITOR FOR THE RESPONDENT: Michael Lynch Family Lawyers

UNDERTAKINGS

1. The Court NOTES the undertaking of the father that he will withdraw all applications pending in the Court of City A relating to the parenting of the children.

2. The Court NOTES the undertaking of the mother that she will withdraw all applications pending in the Court of City A relating to the parenting of the children.

3. The Court NOTES that the undertaking of the parents does not prevent either of them from making an application to the Court of City A for permission to use material filed or otherwise relied upon in that Court for the purpose of the parenting proceedings in Australia OR making any application in relation to the charge over the father’s superannuation interests in City A presently held by the legal aid authority in City A.

ORDERS

IT IS ORDERED PENDING FURTHER ORDER

1. That the children X born … 2010 and Y born … 2012 live with the father.

2. That the children spend time with the mother as follows:

   (a)In each of the school holidays after the first, second and third school terms from midday on the first Saturday of the holidays until midday on the last Saturday of the holidays with the change-over to occur at the McDonalds Family restaurant at B Town.

   (b)On any weekend in Brisbane from after school on Friday until school starts on Monday, the mother to collect the children from school and return them to school, provided that the mother gives to the father 14 days’ notice of her intention to travel to Brisbane.

3. That when the children are spending time with the mother during school holiday periods, they sleep in the same home or premises as the maternal grandparents.

4. That neither parent shall consume alcohol when the children are in his or her care.

5. That within 48 hours of a request by the Independent Children’s Lawyer (“ICL”), each parent shall undergo chain of custody drug screen analysis to the Australian NZ 4308:2008 standard and shall direct that the test results be provided by the tester to the ICL, provided that the request of the ICL is made not more than fortnightly.

6. That each parent cause the children to have electronic contact with the other on Wednesday and Sunday at 5.30pm, such contact to be by FaceTime, Skype or a similar visual means if possible.

7. That each of the parents do all things required to cause Y to commence psychotherapy as recommended by Dr C with a therapist agreed upon between them. In the event that they are unable to agree on a suitable therapist within 14 days, then the mother shall provide the father with the names of three suitably qualified therapists in the area proximate to the children’s residence and the father shall choose the therapist from that list.

8. That the father do all things necessary to ensure that the mother is advised of the contact details of any general practitioner whom the children attend and that the general practitioner is authorised to communicate with the mother at her request.

9. That each party advise the other of any illness of the children requiring treatment by a medical practitioner.

10. That the father authorise the principal of the children’s school to provide to the mother all information usually provided to parents.

11. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA

FILE NUMBER: BRC 14097 of 2019

Ms Pagett

Applicant

And

Mr Pagett

Respondent

REASONS FOR JUDGMENT

1. Ms Pagett (“the mother”) and Mr Pagett (“the father”) are the parents of X aged 10 and Y aged 8.

2. The children are currently living with their father in Brisbane.

3. These proceedings have been instituted and are being heard in the Brisbane registry of the Family Court of Australia but this application is being heard electronically in accordance with the arrangements made nationally for COVID-19 related matters.

4. By an Application in a Case filed 8 May 2020, the mother seeks orders that the children live with her in D Town and spend time with the father on the first and third weekends of each month either in D Town or, on the first weekend of the month in Brisbane if the father arranges for the children to fly to and from Brisbane.

5. The father, by a response filed 13 May 2020, seeks orders that the children live with him and spend time with the mother, in the absence of agreement, from midday on 17 May until 24 May 2020 and from Saturday 27 June until Sunday 11 July 2020 with the changeover to occur at B Town. He also proposed in open correspondence that the mother spend weekends with the children in Brisbane provided that she gives notice.

6. When the matter came before the Court, the children had been in the care of the mother since 15 May 2020 by agreement and were to be returned to the father on 24 May 2020.

JURISDICTION

1. The parents have lived in City A, where the father was employed since 2009. Both of the children were born in City A.

2. The parents have been litigating in a Court of City A since 2013.

3. Having been separated for a period in the one home, the parties physically separated in 2016, renting apartments in the same building. They then shared the care of the children. Counsel for the mother conceded that the shared arrangement saw the children spending “slightly” more time with the mother.

4. The final parenting proceedings were listed to he heard for ten days in City A commencing on 19 May 2020. That hearing was vacated because of the COVID-19 pandemic.

5. On 4 December 2019, the mother filed an application in the Court of City A seeking orders permitting her to remove the children from City A and travel to Australia.

6. On about 21 January 2020, the father moved to Australia where he commenced employment in the Brisbane area.

7. On 13 February 2020, an order was made for the temporary removal of the children from City A to Australia. The orders provided that the children live with each parent on a two week rotation until 1 June 2020 when they are to be returned to City A.

8. Prior to the commencement of the hearing, I raised with the parties, and sought submissions, as to the place of the children’s habitual residence, having regard to the provisions of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the Child Protection Convention”) signed at The Hague on 19 October 1996.

9. Australia has signed and ratified the Convention. The Asian country has not.

10. It was common ground that, if the children remained habitually resident in City A, the provisions of section 111CD(1)(c) of the Family Law Act 1975 (Cth) would have the effect of depriving this Court of jurisdiction.

11. Both parties have deposed to their intention that the return to Australia from City A is intended to be permanent and that they each intend that they and the children will live in Australia. They no longer have housing in City A, the children are no longer enrolled in school in City A and the father no longer has employment in City A.

12. The father has employment in Brisbane, he has rented accommodation in Brisbane and the children have been enrolled in school in Brisbane.

13. The mother is living with her parents in D Town and she deposed to an ultimate intention to move to Sydney where she will find employment and accommodation.

14. I accept that the children are now habitually resident in Australia.

15. Both of the parties have given undertakings to withdraw their applications in the Court of City A in so far as they relate to the parenting of the children. The wife’s undertaking is subject to her intention to make an application in City A for permission to use, in the Australian proceedings, the various affidavits and reports that have been filed in the City A proceedings and to the need to have the court in City A deal with the charge imposed by the legal aid authority in City A on the husband’s superannuation entitlements in City A.

16. The effect of those undertakings is that the parenting dispute will be determined in the Family Court of Australia.

BACKGROUND

1. Pursuant to the orders of the City A court, the children were living with the father in Brisbane when the Queensland Government announced that the border with New South Wales would close on 26 March 2020.

2. The father retained the children in Brisbane. The father enrolled the children in school.

3. By agreement, the children spent time with the mother at D Town between 11 April and 19 April and again from 15 May until 24 May 2020.

4. Each of the parties alleges that the children are at risk in the care of the other although it is conceded that the children have lived in an approximately equal shared care arrangement for the past four years.

5. The mother alleges that the father has had significant problems with alcohol use and drug abuse leading to the termination of his employment in City A.

6. The father alleges that the mother has suffered mental health problems and has a history of significant alcohol abuse.

7. Y has been seeing a therapist since 2016, originally Dr E and then Dr F. By order of the City A court made 4 September 2019, the children began seeing their school counsellor and they have also seen a play therapist.

8. The mother concedes that in 2016, her alcohol abuse became problematic.

9. The father deposed that, on 27 February 2019, he received a phone call from X who was hysterical and crying because he could not wake the mother. The father called the ambulance and police and, by the time he reached the mother’s apartment, she had been roused and was “semi lucid”. The father deposed that the children told him “mummy had been acting crazy the night before, she hit her head and there was blood on the wall and we couldn’t sleep because mummy was wailing all night”.

10. The mother contends that she has not consumed alcohol since that date.

11. The father deposed that on 7 November 2019 he received a phone call from X and WhatsApp messages and also spoke to Y. X messaged “Daddy I really miss you so can you call me soon…from X”.

12. Y messaged “X really misses you so much X can’t get to sleep please please call him back X is screaming and crying X loves you so much”.

13. Y messaged “I love you daddy it is Y I miss you so so so so so so so so so much”.

14. Later that evening at about 10.35pm, one of the children attempted to call the father three times. The child then messaged “Please call X will not get to sleep… mummy is not waking up help”.

15. The father called the police and ambulance and telephoned the children. X told the father that he could not wake the mother.

16. The father then spoke to Y who asked him to come and collect X but said “I am still going to be up in the apartment sleeping with mummy”. The father told Y that he would come to the apartment and “have a talk with Mama and make sure everything is ok” and Y said “Well, we can’t do that tonight because no matter what we try… We’ve literally tried everything to wake up Mummy and she won’t even wake up”. Y told the father that she would stay in the apartment with her mother.

17. Before me, the mother maintained that she had not, on 7 November 2019, been affected by alcohol but rather that she had been affected by drugs prescribed for her mental health difficulties.

18. Either situation is of great concern in terms of her ability to care for the children.

19. The father deposed that on 8 November 2019 he received a telephone call from the mother and he could hear Y screaming hysterically in the background. The mother asked the father to “come and get her now please because she is out of control”. The mother said that Y had “completely and utterly destroyed my kitchen” and “She’s just, she’s angry. She’s angry with everything”. The transcript of the phone call is in evidence.

20. The mother deposed that, in late November 2019, Y, then aged seven, threatened to jump from a window of their apartment, drew a knife and held it to herself, or according to the maternal grandfather, lunged at the mother. The mother then took Y to see a psychiatrist who prescribed an antidepressant for the child. The father was told and contacted the psychiatrist objecting to Y taking the antidepressant. The psychiatrist proposed a two week intensive therapy for Y. It is not clear from the evidence whether this therapy occurred.

21. The father deposed that, on 7 December 2019, he received a telephone call from the maternal grandfather who was in City A staying with the mother telling him, “you have to come and get Y. She is out of control…” he collected Y and she stayed in his care for the next seven days.

22. The mother asserts that the father has a history of alcohol abuse and illicit drugs since at least 2009. She deposed that in 2009 (when the mother was at home) and again in 2010 when, on each occasion, he was drunk, he brought a prostitute to their apartment. 

23. The mother deposed that the father continued to drink heavily after their separation and at times when he was caring for the children.

24. In July 2018 the mother reported her concerns about the father’s excessive alcohol consumption to the father’s employer as a result of which he was tested and stood down.

25. A letter from the father’s employer dated 5 December 2018 was in evidence. In that letter, the employer refers to the father’s testing positive for illicit drugs and failing to complete a “fitness for duty assessment”.

26. It is not in dispute that the father’s employment was terminated.

27. The father denies the mother’s allegations of excessive consumption of alcohol and use of illicit drugs but brought no evidence to support those denials.

28. In particular, although a report was prepared by the G Centre in December 2018, which I infer dealt with the issues of substance abuse, that report was not put into evidence by the father.

29. The father asserts that he has not consumed alcohol since 2 January 2019 and that, in his present employment, he is subject to random testing. He does not depose that he has ever been tested.

30. There is reason to be concerned about the parenting capacity of both of the parents but, in proceedings of an interim nature where allegations cannot be tested and not all of the evidence is available, it is not possible to make findings about those matters of concern. It is, however, relevant that even after they moved to Australia, both parents sought to put in place an equal time arrangement which was interrupted by the COVID-19 pandemic and that neither seeks an order that the time the children spend with the other be supervised.

31. It is also relevant that the father has made an open offer to share care with the mother if she moves to Brisbane.

32. Shared care is impossible where the father lives in Brisbane and the mother in D Town (some 700 kilometres apart) and no more possible if the mother were to move to Sydney as is her ultimate intention.

33. Thus the determination to be made today is where the children should live until such time as their final parenting arrangements are able to be determined.

34. The proceedings are returnable before a registrar on 9 July 2020 when the father will ask the Court to make orders for inclusion in the Child Inclusive Program. Both parents agree that an Independent Children’s Lawyer (“ICL”) should be appointed for the children and those orders have been made with a request that the appointment be expedited so that the ICL can participate on 9 July 2020.

THE HEARING

1. The mother relied on her affidavits sworn on 2 April 2020 and on 7 May 2020.

2. The father relied on his affidavits sworn on 31 March 2020 and on 13 May 2020.

3. Both parties tendered bundles of exhibits including correspondence between their respective solicitors.

4. The father tendered a report from Dr C, a consultant psychiatrist who saw the parties and the children on four occasions in December 2019.

REPORT OF DR C

1. Dr C’s report is dated 28 December 2019. She was provided with the following documents, none of which was in evidence before me:

   ·    Redacted Assessment report of the G Centre for the father.

   ·    Psychological report of Dr J dated 20 November 2018.

   ·    Social welfare report of Ms K dated 20 November 2018.

   ·    Updated report of Ms K dated 9 October 2019.

   ·    Letter from Dr L dated 18 November 2019.

   ·    Redacted assessment of the father from H Service dated 6 December 2019.

   ·    Letter from Dr N (father’s treating doctor) dated 20 December 2019.

   ·    Audio recordings, I assume of phone calls, on 7, 8 and 27 November 2019, 7 and 8 December 2019.

   ·    Email copies of Y’s progress from the father dated 8, 15 and 17 December 2019.

   ·    Email copies of Y’s progress from Dr F dated 12 and 13 December 2019.

   ·    Affidavit sworn by the maternal grandfather in the City A proceedings dated 4 December 2019.

   ·    City A Court summons dated 4 December 2019.

2. Dr C does not specifically identify that any of the documents with which she was provided included reports from the mother’s treating doctors.

3. Dr C reported, in relation to Y:

   In the first session with her father, I observed that her interaction with him was positive and comfortable; she was willing to leave the room by herself to draw in the waiting area, and came back at regular intervals to touch base with her father and show him her drawings. She signed the drawings with her name and father’s name, and gave them to him as a present. She looked to him for reassurance and made reasonable requests such as if he would take her to the amusement park soon.

   At the second session with her father, she sat on his lap, drew “cool dad” on his forearm, laughed easily and appeared cheerful. At no time during the two sessions I saw her with her father did she refuse to comply with a request or display a tantrum when her requests were not met. During this session she indicated that she would prefer to have both parents to spend time with, however she said she preferred not to stay overnight at her father’s place without specifying any reasons. Later she whispered in her father’s ear said that it would be better if her mother was present when she stayed over at father’s place, but did not further elaborate on why. She showed some hesitation in leaving City A and her friends behind, but did not seem too distressed by the upcoming move to Australia.

   In my third session with Y in her mother’s presence, she appeared playful at first, such as asking mum to lift her up with her legs while sitting on her shins and giggling. She started drawing in a similar fashion to the past two sessions, but towards the end she doodled outside of the paper onto the desk, and made prints on paper, other items on the table and her forearms with a rubber stamp, and attempted to stamp on mum’s white trousers, but stopped when asked not to. She wrote the word “dream” on her mother’s forearm. She made a loud noise in mum’s face to get her attention while mum was speaking to me. She snapped mum’s bra strap and elbowed her in the ribs when she was not getting attention from her or when she did not agree with what mum said. When asked to get up from the floor, she hit mum twice with her soft toy. She was initially reluctant to leave the room but did so after some persuasion, but was asking repeatedly to be let back in shortly until she was distracted by the clinic staff.

   Y was aware that they are moving to Australia, but said no one has informed her of a plan. She indicated that she wanted to be with her paternal cousins S and T who are living in Country Q at the moment, but when asked specifically, she did not show a preference between Brisbane, Sydney and D Town. She expressed resolutely that she wants to live with mum, but preferred not to be with her brother in the same place. She did not indicate any preference when asked whether she would like to spend time with her father or not.

1. Referring to the affidavit of the maternal grandfather, Dr C reported:

   Mr R, [the mother’s father], reported in his affidavit to court that Y had tried to climb out of the window and balcony on three occasions in November 2019, and drew a kitchen knife and “lunged” at [the mother] when her request for a sharp knife to cut an avocado was not granted on 15^th November 2019.

2. Mr R did not swear an affidavit in the proceedings before me and it is notable that his account of Y’s behaviour in November 2019 is not consistent with that of the mother.

3. In relation to Y’s attachment to the mother, Dr C stated that her first impression was that Y seemed to display some behavioural issues likely to be related to the separation of the parents and the changes to her living and social arrangements. She wrote:

   There were features of separation anxiety from her mother – the main attachment figure, and although not overtly verbalised by Y, her behaviour seemed to indicate that she 1) worries about possible harm befalling her mother, 2) refuses to leave her mother’s side, 3) has difficulty separating at night, and 4) shows excessive, recurrent distress in anticipation of, during or immediately following separation from her mother. This type of behaviour started before the age of six and the duration has been at least four weeks. There were no features elicited to support a diagnosis of generalised anxiety disorder of childhood. Thus a diagnosis of separation anxiety disorder of childhood (ICD-10 F93.0) was made.

4. Dr C stated:

   In my opinion, the likely precipitating event of Y’s behavioural issues was on 26^th February 2019 when X was not able to wake [Ms Pagett] up, and subsequently police and ambulancemen [sic] were involved, which would have been confusing and overwhelming for Y. Since then, Y’s transition from [the mother] to [the father’s] place has been difficult. A second incident on 7^th November 2019 further perpetuated Y’s anxiety and worries about [the mother]. As [the mother] has been the main caregiver while [the father] was the breadwinner, it was normal for Y to show a preference for her mother when specifically asked. However, the attachment style of Y towards her mother appeared enmeshed, with parentification of the child in the relationship. I concur with the psychological report that the mother-child dynamic and boundary-setting can be improved upon.

5. In relation to the parents’ alcohol and substance abuse issues and the mother’s mental health issues, Dr C stated:

   Both [the father] and [the mother] reported that they have been abstinent from alcohol since 2^nd January and 27^th February 2019 respectively. [The father] had provided a psychiatric assessment from G Centre and H Service which indicated he had no formal diagnosis of addiction, and he has also been undergoing regular monitoring of his sobriety as documented the letter from Dr N. As [the mother] has a history of post-natal depression and problematic drinking, for which she was currently seeing a psychiatrist for medications and a therapist for counselling, it may be helpful to have an independent psychiatric and/or psychological report of [the mother’s] current mental health status as well, so that both the parents mental well-being can be taken into consideration when deciding on matters of divorce such as care and control.

6. Dr C’s recommendations for the future parenting arrangements were set out in the following terms:

   Regarding care and control, I agree with the opinions stated in the psychological and social welfare reports that joint care and control would be the best for Y and X. Both parents have consistently demonstrated their care and love for the children, and from what I have observed of Y and from the above reports, the children also respond positively to both parents. However, the parents’ animosity towards each other has impeded the discussions in achieving a resolution on this matter. I also noted that the communication style between the parents have at times led to misunderstanding by the other party. It is of paramount importance for the parents to work towards improving post-divorce communication and co-parenting skills.

   …

   A location which provides good healthcare infrastructure would be important, as continued therapy and ongoing monitoring of the children, particularly Y’s mental well-being is necessary. Since there has been more than one incidence where the police and ambulance services were involved, it would be prudent for the family to live in a location with timely access to emergency services, should further similar incidents arise. Furthermore, a larger city with the infrastructure, stimulation and cultural variety similar to City A would make the transition to Australia easier, as Y has grown up in City A her whole life.

7. In relation to future therapy for Y, Dr C stated:

   Regarding treatment for Y, I recommend that she receive regular psychotherapy as a first line treatment. It would also be beneficial for [the mother] and Y to attend therapy together to improve on their interaction pattern, so that a normalised parent-child relationship can be established.

CONSIDERATION

1. In determining the interim arrangements for these children, regard must be had to the benefit to them of maintaining a meaningful relationship with both of their parents.

2. The question of what is meant by the term “meaningful relationship” was considered by the Full Court in the decision of McCall & Clarke [2009] FamCAFC 92 where their Honours said, commencing at [109]:

   The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life.  It does not give guidance to the interpretation of the phrase “meaningful relationship”.

   It is necessary we construe the language of the statute to determine whether the import of the legislation is clear without reference to extrinsic material.   

   The Macquarie Dictionary defines the adjective “meaningful” as “full of meaning, significant.  Significant is defined as “important; of consequence” 

   The Shorter Oxford English Dictionary defines “meaningful” as “Full of meaning or expression; significant …”  “Significant” is defined as “Having or conveying a meaning; Expressive; suggesting or implying deeper or unstated meaning … important, notable; consequential ...”

   We turn first to the objects clause (s 60B(1)).  The purpose of an objects clause is “to indicate the intended purpose of the legislation” (Pearce, D C & Geddes, R S, Statutory Interpretation in Australia, 6^th ed, Lexis Nexis, Australia, 2006) The learned authors further note at 4.42… “objects clauses are used as an aid to the construction of words of legislation.  Gleeson CJ referred to the legislative declarations of the objects of an Act as giving practical content to abstract terms such as ‘reasonable’, ‘justification’ and ‘satisfactory’ in Russo v Aiello (2003) 215 CLR 643 at 645”.

   Section 15AA of the Acts Interpretation Act 1901 (Cth) provides for a purposive construction of a statute.

   The phrase “meaningful relationship” in the context of s 60CC(3)(a) has, not surprisingly, been considered in a number of decisions since the introduction of the amending Act.  In Mazorski & Albright (2007) 37 Fam LR 518 Brown J, after setting out the definition of “meaningful” and “meaning”, said at paragraph 26:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.   

3. The Full Court in Moose & Moose [2008] FamCAFC 108 adopted the statement of Kay J, sitting as a single Judge in Godfrey & Sanders [2007] FamCA 102, who stated:

   ...even if the move results in a diminution of the quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.

4. Thus I am required to consider the importance of the children having a relationship with each of their parents that is significant, important and of consequence, from the present time until a further determination as to their parenting arrangements can be made.

5. The need to protect the children from harm arising, relevantly, from substance abuse, is also a primary consideration. In the present case, both parties have, in the past presented a risk to the children from substance abuse.

6. The only objective evidence in relation to the children’s views is found in the report of Dr C and that evidence is confined to Y’s views. I accept that Y told Dr C that she wants to live with her mother but I also accept that those views have to be carefully considered in the context presented by Dr C where Y may have an enmeshed relationship with her mother and feel that she needs to be present to care for her mother.

7. Y also told Dr C that she did not want to live with X but neither parent suggests that the children should be separated.

8. Y also told Dr C that she wanted to be with her paternal cousins who live in Country Q.

9. I do not consider that the weight to be given to Y’s expressed views could be determinative.

10. There is no suggestion that the children do not have a close and loving relationship with both of their parents. However, it is clear from the report of Dr C that she regards the relationship between Y and the mother as having problems and that she does not express similar reservations about Y’s relationship with her father.

11. In either proposal, the grandparents would also be closely involved with the children’s care. The father deposed that the paternal grandmother assists with collecting the children from school. The mother intends to live, albeit in the short term with her parents.

12. Both parties have formed new relationships. The father’s partner lives in City A although she has been visiting the father in Brisbane. The mother has formed a new relationship with Mr H in D Town. Neither parents makes any significant adverse assertions about the other’s partner.

13. In considering the respective capacity of the parents to care for the children, the issues of substance abuse and mental health are foremost.

14. There is little evidence in relation to either issue but such evidence as exists tends to suggest that the mother’s vulnerabilities are of more concern than the father’s.

15. Counsel for the mother submitted that the Court’s concerns about the mother’s fragility would be ameliorated because she will be living with her parents but I do not accept that submission for the reasons which will be set out later.

16. As recently as November 2019 the children were unable to rouse the mother. The mother gives no evidence about this incident in her affidavits and no explanation for it. Counsel for the mother told the Court that on 7 November the mother was not drunk but was affected by medication prescribed by her psychiatrist. The mother did not give that evidence.

17. If that is so, it is no less concerning. On either causation, the mother was unconscious and the children were understandably hysterical.

18. Of further concern is the incident on 8 November 2019 (referred to earlier in these reasons) when the mother called the father to come and get Y. This incident is not mentioned in the mother’s affidavits.

19. The incident where Y threatened to jump out of the window and held a knife to herself or the mother, either once according to the mother, or on three occasions according to the maternal grandfather, occurred when Y was in the mother’s care. The mother took Y to a psychiatrist after that, or those, incidents without consulting the father and it is not in dispute that, without the father’s consent, Y was prescribed an antidepressant medication.

20. As noted earlier in these reasons, the father deposed that, on 7 December 2019, he received a telephone call from the maternal grandfather who was in City A staying with the mother telling him, “you have to come and get Y. She is out of control…” he collected Y and she stayed in his care for the next seven days.

21. This incident is not mentioned in the mother’s affidavits.

22. The mother gave evidence in relation to her mental health difficulties in her affidavit sworn 2 April 2020. She deposed that in 2013 she was diagnosed with post-natal depression, was prescribed medication and attended counselling.

23. In early 2019 she experienced panic attacks and was prescribed sleeping pills and sedatives by her general practitioner. In May 2019 she sought treatment to wean herself of the medication. She deposed:

    I have been under the treatment of a Psychiatrist in City A since November 2019 who had prescribed me [4 anti-depressive medications], all once a day. This medication was not available in Australia up [sic] my return. Under the treatment of a psychiatrist in D Town I was taken off those medications and prescribed the sole anti-anxiety medication which I currently take.

24. There is no evidence from any of the mother’s treating psychiatrists or other practitioners.

25. There is some material available about the father’s substance abuse, albeit in the material provided to Dr C which suggests that as at 20 December 2019, his use was being monitored by Dr N. I have inferred that Dr N did not express any concerns about continuing use because Dr C referred to “regular monitoring of his sobriety as documented the [sic] letter from Dr N”.

26. Dr C’s report recommended “regular psychotherapy as a first line of treatment” for Y.

27. That recommendation is not met by the mother’s proposal that the children see the school counsellor at D Town Public School or a therapist recommended by that counsellor.

28. It is more likely that a suitable psychotherapist would be found in Brisbane than in D Town.

29. The father has proposed a therapist for Y who is a psychologist. The mother has not consented to Ms U as a therapist for Y and there is no evidence that Ms U is a psychotherapist. It is appropriate that the parents together choose a therapist for Y and that the mother have input into the identity of that therapist. If they are unable to reach agreement, the ICL may be able to assist them.

30. The children were enrolled in the local state school in Brisbane by the father from 9 March 2020 and they attended until the school holidays commenced on 4 April 2020 when they went to spend holidays with the mother. They have continued to attend school every day because the father is classed as an “essential worker”. The father tendered email correspondence from the principal of the school that the children attend indicating that they are doing well.

31. There is some confusion about whether the children have also been enrolled in school at D Town. The father tendered a letter from the principal stating that the children had attended one “trial day” at the school. The mother contends that they have attended more often but provides no evidence.

32. In any event, it would seem from the evidence that the school with which the children are most familiar is the Brisbane school.

33. Having regard to all of those matters, in circumstances where the parents cannot share the care of the children, they should remain living primarily with the father.

34. The orders will provide that they spend their school holidays with the mother and that she be able to spend time with them in Brisbane. I accept that the mother’s ability to travel to Brisbane might be affected by restrictions on freedom of movement currently imposed in Queensland but those restrictions may be ameliorated by these orders and, in any event, are not permanent.

35. The father seeks an order requiring the children to sleep at the home of the maternal grandparents when they are in the mother’s care. The mother opposes that order.

36. The mother deposed that she intends to move to Sydney where she can find work and where she has friends and support. Further, there is correspondence between the respective lawyers where the father complains of the children having spent time and slept for three nights at the home of the mother’s new partner, Mr H. The mother, through her solicitor, is adamant that she can decide where the children spend their time, and sleep, when they are in her care

37. As recently as 18 May 2020, the mother’s solicitors wrote:

    With regards to where the children spend their overnight time… Our client’s position is that it is a matter for her to make decisions about the children’s care when they are with her.

38. It is also a matter for concern that the incidents which occurred in late November and December 2019 in City A, occurred while the maternal grandfather was living in the mother’s home and his presence does not seem to have ameliorated the incidents between Y and the mother.

39. I propose to order that the children sleep in the home of the maternal grandparents when they are in the care of the mother in D Town.

40. The mother seeks orders for random urinalysis. The father does not oppose the making of that order and it seems appropriate having regard to the history of substance abuse by both parents. The orders will provide for the parents to undergo testing as randomly directed by the ICL not more than fortnightly.

41. Neither parent should consume alcohol while the children are in his or her care.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 25 May 2020.

Associate:  25/05/2020

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