Prescott and Norrie
[2008] FMCAfam 15
•25 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PRESCOTT & NORRIE | [2008] FMCAfam 15 |
| FAMILY LAW – Children – equal shared parental responsibility – spends time with – psychological disorder – best interests of child – no order. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 61DAA, 65D Family Law Amendment (Shared Parental Responsibility) Act 2006 |
| Applicant: | MR PRESCOTT |
| Respondent: | MS NORRIE |
| File Number: | BRC 2145 of 2007 |
| Judgment of: | Connolly FM |
| Hearing date: | 19 November 2007 |
| Date of Last Submission: | 21 November 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 25 January 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kent |
| Solicitors for the Applicant: | Barry & Nielson Lawyers |
| Counsel for the Respondent: | Mr Baston |
| Solicitors for the Respondent: | Hopgood Ganim Lawyers |
| Counsel for the Independent Children’s Lawyer | Mr Cameron |
| Solicitors for the Independent Children’s Lawyer | Victoria Legal Aid |
ORDERS
That the parties have equal shared parental responsibility for the long term decisions regarding the child H born in 2004.
Unless otherwise agreed between the parties and until the child commences preparatory school, the child live with the father as outlined below and at all other times, with the mother:
(a)Until June 2009, from after day care at 3:30pm Tuesday to 3:30pm Thursday each week, with the father to collect the child from day care on Tuesdays and changeovers for Thursdays shall be at the L Contact Centre;
(b)From June 2009 until the child commences preparatory school, with the father from 3:30pm Monday to 3:30pm Thursday with changeovers at the L Contact Centre.
From the time the child commences preparatory school, as agreed between the parties.
Unless otherwise agreed that the child communicate with his parents by telephone as follows:
(a)Until the child commences preparatory school, with the mother on Wednesday night between 6:00pm and 6:30pm, with the father to initiate the call;
(b)Until the child commences preparatory school, with the father on Saturday night between 6:00pm and 6:30pm, with the mother to initiate the call;
(c)Irrespective of with whom the child is living, should the child express a view that he wishes to have telephone communication with the other parent, the parent with whom the child is living shall facilitate the child initiating such communication.
That the father’s time with the child shall be conditional upon him continuing to attend:
(a)Dr. R, or;
(b)Any specialist referred by Dr. R as required by Dr. R or such referred specialist.
That these orders authorise the mother to discuss with Dr. R (or referred specialist) the following:
(a)The father’s treatment;
(b)The father’s compliance with and changes to his treatment;
(c)Recommendations of Dr. R (or referred specialist);
(d)The father’s medication, or;
(e)Any concerns which the mother may have in relation to the father’s mental health;
(f)Any concerns Dr. R (or referred specialist) may have in relation to the father’s mental health;
(g)Generally, the father’s mental health. This order specifically permits Dr. R (or referred specialist) to notify the mother of any issue which arises which in his opinion, may affect the father’s care of H.
The parties shall not denigrate the other or their family to or in front of or within the hearing of the child and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of the child and failing their compliance with such a direction, shall remove the child from that environment immediately.
That the parties shall not discuss these proceedings or any other proceedings in which the parties are involved (including but not limited to domestic violence proceedings) to, or in front of, or within hearing of the child and shall direct third parties to refrain from discussing such matters, or in front of, or within the hearing of, the child and failing their compliance with such a direction, shall remove the child from that environment immediately.
This order irrevocably authorises the child’s:
(a)Schools or other education facilities;
(b)Care providers;
(c)Medical, allied health professionals or health care professionals, and;
(d)Entities in which the child are enrolled in extra-curricular activities
(e)to provide each of the parties any report, notice, copies of school photos, information or other material regarding the child which the parties so request. If any costs are associated with a request, pursuant to this order, the requesting party shall be liable for any costs.
That the mother and father must:
(a)Inform the other of any serious illness or accident which the child may suffer and the name of the treating doctor or medical facility;
(b)Inform the other of any change in residential address, telephone number or mobile number within 24 hours of such change.
For the purposes of a dispute arising regarding these orders, the interpretation of these orders or for the purposes of joint consultation, the parties shall participate in dispute resolution in the manner outlined below:
(a)The initiating party shall obtain a referral from a Family Relationships Centre (FRC) which shall contain a list of three dispute resolution practitioners or such other qualified practitioner located as close to halfway between the parents’ residences as possible;
(b)The initiating party shall then provide that list to the other party and that parent shall, within seven days, communicate their nomination from the list of three;
(c)Where there is no agreement as to the dispute resolution practitioner, the dispute resolution shall occur at the closest Family Relationship Centre to the midway point between the parties’ residences and where appropriate, by telephone;
(d)The parties shall, by way of communication with the nominated practitioner, organise dispute resolution at a time mutually convenient to each of the parties;
(e)That for the purposes of joint consultation and dispute resolution regarding education of the child, each party shall, 14 days prior to any dispute resolution, provide to the other party a list of their selected schools, together with the published material of the school, including curriculum and extra-curricular activities and enrolment forms and fees (if any);
(f)That the initiating party bear the costs (if any) of any dispute resolution;
(g)Either party at their own nomination can be the initiating party;
(h)That there be not more than one dispute resolution in relation to any issue unless otherwise agreed between the parties.
Until the child commences preparatory school, that each of the parents shall, on the giving of 28 days notice in writing to the other, be entitled to spend a period of not more than seven consecutive days with the child on four occasions each calendar year, such periods not to include any of the special event dates provided in Order 16 below.
That during such period, any other spending time arrangements pursuant to these orders shall be suspended.
That if possible, the father exercises holiday contact and holiday periods with H in conjunction with his mother.
That except in instances where it is otherwise agreed between the parties, the places of changeover for H at the beginning and end of his time with his parents shall be L Contact Centre or H’s place of day care if H attends day care on that day.
That the time that H would spend with each parent pursuant to these orders are suspended to provide for each parent spending the substituted following time with H over the following dates:
(a)H shall live with the father from 9:00am on 24 December until 9:00am on 26 December in each year ending in an even number and from 9:00am on 26 December until 5:00pm on 27 December in each year ending in an odd number;
(b)H shall live with the mother from 9:00am on 26 December until 5:00pm until 27 December in each year ending in an even number and from 9:00am on 24 December until 9:00am on 26 December in each year ending in an odd number;
(c)If H’s birthday falls on a day when he is not living with the father, for four hours;
(d)If H’ birthday falls upon a day when he is not living with the mother, for four hours;
(e)On Father’s Day each year, H is to spend time with the father between 9:00am and 4:00pm if H is not otherwise spending time with the father;
(f)On Mother’s Day each year, H is to spend time with the mother between 9:00am and 4:00pm if H is not otherwise spending time with the mother.
IT IS NOTED that publication of this judgment under the pseudonym Prescott & Norrie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 2145 of 2007
| MR PRESCOTT |
Applicant
And
| MS NORRIE |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises out of competing residence applications with respect to the child of the marriage, H born in 2004 and now three years of age. The documents on which each party relies are set out in their respective case outlines. In addition there is a further report of
Dr. McGuire, which was filed by the Independent Children’s Lawyer. The proceedings initially commenced in the Family Court on 13 October 2005 and were transferred to this Court on 19 February 2007.
Each of the parties proposed certain arrangements for H’s residence prior to the commencement of preparatory school and other arrangements once he started school. The Applicant’s application is contained in paragraph 27 of his affidavit filed 30 October 2007 and involved a shared regime, with H being with him from 9:00am Wednesday to 9:00am Saturday; and with the mother during the rest of the week. He further proposed that H spend four block periods of one week with each of them throughout the year. Once H commenced school, the father proposed the arrangements should change so that H spend a whole weekend with each parent and that in essence, the care of H be shared equally, including holiday time. The mother sought orders in her application that H spend time with his father until the commencement of school from Wednesday morning to Thursday evening each week and each alternate Saturday from 12:00pm to 4:30pm and in addition, from 9:00am Saturday to 6:00pm Thursday on four occasions each year. Once H commenced school, she proposed that he spend time with his father each alternate weekend from Saturday 9:00am until the commencement of school on Monday and each alternate Thursday, from the conclusion of school until the commencement of school on Friday. In addition, the mother proposed that H spend two weeks with his father during the Christmas holidays and one week during each school term holiday. Each of the parties also sought orders with respect to Christmas and other special days as well as specific arrangements for changeover and specific issues orders.
By the time the parties began their final addresses, there were further changes to the orders that they sought. The most significant being that the Respondent wife did not want orders made with respect to living arrangements for H once he commenced school. More detailed proposed orders with further amendments were provided by each of the parties in writing following final addresses.
The History
The husband was born in 1969 and is 38 years of age. He is currently in receipt of a veteran’s affairs and ComSuper pension and is a Tertiary Student.. He lives at Property K in Brisbane. The wife is also 38 years of age and was born in 1969. She is employed as a Human Resources Manager with M Limited. She lives with her parents at Property C, in a suburb of Brisbane.
The parties first met in 1991 in Brisbane. They commenced living together in 1993-94 and married on 23 September 1994. Shortly after their marriage they moved to Melbourne and the husband was then transferred to Sydney at a later stage where the parties resided until separation.
The husband went to East Timor with the Australian Army as a member of the first unit to serve in East Timor. He was there from
15 September 1999until his return in mid-February 2000. While in East Timor he was exposed to many atrocities which affected him profoundly.
When he arrived home from East Timor, he took long service leave. He was later diagnosed with Post Traumatic Stress Disorder and was on sick leave until he was medically discharged from the army on
18 November 2001. The husband’s health deteriorated over time. He was very angry about the atrocities he had observed. He believed that the perpetrators were not punished and indeed in some cases, ended up in prominent positions. He became depressed and concedes that by 2002 there were a number of occasions where he lost touch with reality. During this time he would leave home by the back door because he felt he was being watched and that his phone was being bugged. He also suffered from panic attacks. He went to his doctor and talked about his experiences in East Timor and that stirred things up - he was suffering from nightmares and flashbacks. He was ultimately referred to a psychiatrist, Dr. B, by a military psychologist after being diagnosed with Post Traumatic Stress Disorder. His anger about what he had seen ultimately caused him to go public with his views. He approached the ABC and SBS with arrangements about making a film. While he was still in the military, he went back to East Timor with journalists and took them to specific areas. He was initially charged by the military with contravening the Official Secrets Act but eventually the military re-thought its position and did not pursue the charge.
As a result of his illness, the husband has seen a number of medical practitioners including Dr. T, Dr. B (who treated him while he continued to reside in Sydney) and Dr. R (early 2006) after he moved to Brisbane. Dr. R has provided a report in these proceedings. The husband has been prescribed, at various times, Xanax and for about four years, Efexor 150mg daily, although that dose was varied according to his condition. The wife makes various allegations about the husband’s delusional behaviour and about his aggression and failure to take medication. In May of 2005, she arranged for the husband to be re-assessed by the Veteran’s Affair’s Department and those arrangements ultimately led to the husband obtaining a Veteran’s Affairs pension.
Despite the husband’s ongoing health problems and the various episodes of erratic behaviour which the wife details in her affidavits, the parties planned the birth of their child H and both were happy about it. H was born in 2004. Initially the parties planned that the mother would return to work and the father would relinquish his preoccupation with East Timor and become the primary carer. Prior to the birth, the mother had been employed on a full time basis with H Limited as a director of human resources.
Following H’s birth, the mother took about eight weeks off and then returned to work on Mondays and Tuesdays in the office and worked from home on the remaining three days of the week. For the two days that she worked in the office, H attended a childcare centre. She continued to breast feed him as the childcare centre was only a minute away from her office. She says that she was the person who cared for H at all times and that the husband did not get out of bed until after midday. She concedes that when H woke from his afternoon sleep around 3:30pm, the husband would play with him. She also says that occasionally the husband cooked dinner or got takeaway and that he changed a nappy about once a day. She says that he took H to one immunisation and bathed him about once every two or three weeks. The husband’s evidence was that he was the primary carer for H during this time. There were two occasions when the wife travelled overseas, for ten days in May and a week in September of 2005. She also did some domestic travel but that was for only one night away at a time. During these work trips, the husband’s mother attended at the home to assist him to care for H. The wife says that she would not have left H with the husband on his own because she would have had concerns for his safety.
In the time following H’ birth, there were a number of episodes that the wife alleges contributed to the ultimate breakdown of the marriage. She says that the husband threatened his father when on a holiday in August of 2005. She also says that in the following month he commenced a three week course for Post Traumatic Stress Disorder sufferers and left after a week. Then on 18 September 2005, the wife claims that he gave the mother a book titled ‘Come with Daddy: child murder suicide after family breakdown’.
The husband also alleged that the wife’s behaviour had been paranoid at times and that she had suffered from post natal depression. He also made allegations that she had in the past, taken drugs, as had other members of her family. He also alleged that the wife’s father had claimed he had shot a man in New Guinea for trespass.
On 8 October 2005, the wife left the family home in Sydney and travelled to Brisbane to live with her parents. She did not alert the husband to the fact that she was leaving. The husband responded on
13 October by filing an application in the Family Court at Sydney, seeking the return of H. On 14 October, orders were made by JR Laughnan that H spend time with his father between 9:30am and 11:30am on 22, 23, 24 and 25 October and 13, 14, 15, 16 and 17 November in Brisbane to be supervised by his mother.
On 28 November 2005, further orders were made by JR Laughnan that H spend time with the husband from 11:00am to 3:00pm each Monday, Wednesday and Friday, with changeover to occur at the coffee shop at C. Following the making of those orders, on 16 December 2005, the husband moved from Sydney to Brisbane. The proceedings were also transferred to the Brisbane Registry of the Family Court. On 28 April 2006 the matter was mentioned before SR Dittman and he ordered that the previous orders remain in place pending further order. The time spent was further extended when the matter returned on 9 May 2006 for determination of interim parenting orders. The orders that were made on that date were that the child reside with the mother and spend time with his father as follows:
a)Each alternate Thursday from 9:30am until 4:30pm;
b)Each alternate Monday from 9:30am until 4:30pm;
c)Each alternate weekend from 9:00am until 4:30 pm on Saturday and Sunday;
d)From 9:30am Saturday until 6:00pm on the following Tuesday up to three occasions in the period of 12 months provided that the husband give 28 days written notice and that he stay with either the paternal grandmother, his brother or his sister for the period.;
e)Time on special days.
Further to the orders of SR Dittman, the husband was allowed overnight contact with H each alternate weekend once his solicitors provided to the Court and the Independent Children’s Lawyer a report from his treating psychiatrist advising the following:
a)The medication currently prescribed for the husband and the purpose of each such medication;
b)The prognosis of his Post Traumatic Stress Disorder and any other problems for which he was being treated;
c)Any reason why he should not enjoy overnight, unsupervised contact with H for the periods specified in the orders.
On 17 May 2006, Dr. R, the husband’s treating psychiatrist, forwarded correspondence to the husband’s solicitors. The correspondence answered the specific questions outlined in the orders dated 9 May as follows:
a. Mr Prescott is currently prescribed Venlafaxine-xr at a dose of 150mg per day. This is being used as an anti-anxiety medication and for the control of Mr Prescott’s Post Traumatic Stress Disorder;
b. With medication, but more importantly, being distanced from the traumas that initiated the Post Traumatic Stress Disorder, I believe that this condition has an excellent prognosis. Mr Prescott does not suffer from any other psychiatric disorders;
c. I see no reason why Mr Prescott should not have overnight unsupervised contact with his son H for the period specified in the orders.
On 23 May 2006, a copy of that letter was forwarded to the Independent Children’s Lawyer and the solicitors for the wife. Accordingly, on 3 June 2006, the husband began to enjoy overnight contact with his son.
On 21 August 2006, the parties attended a conciliation conference with respect to property matters. A settlement of all financial matters was affected and consent orders entered into. Pursuant to these orders the investment property owned by the parties at Property K was transferred to the husband and he now resides in that property.
On 19 February 2007, the matter came before a joint callover of the Family Court and the Federal Magistrates Court at Brisbane. Justice Carmody and Federal Magistrate Baumann conducted the callover and the matter was transferred from the Family Court to the Federal Magistrates Court at Brisbane. Following the transfer of the proceedings, the parties attended dispute resolution counselling at a Family Relationships Centre but were unable to resolve the dispute and on 23 July 2007, Federal Magistrate Spelleken made procedural orders for trial and set the matter down for hearing on 19 November 2007.
Following the orders of 9 May 2006 and the commencement of overnight time from 3 June 2006, the husband also spent time with H on three other occasions as follows:
a)From 8 July 2006 until 11 July 2006 when H travelled with his father to B in Victoria and stayed at his father’s parents’ home. His sister was visiting from overseas at the time;
b)From 16 until 19 September 2006 when H travelled with his father to the Sunshine Coast and stayed with his parents who were holidaying there;
c)From 9 June 2007 to 12 June 2007, H again travelled with his father to the Sunshine Coast and stayed with his father’s parents while they were holidaying;
d)From Tuesday 19 June 2007 to Thursday 21 June 2007, H again travelled to the Sunshine Coast with his father and stayed with his father’s parents at the Sunshine Coast.
In 2007 the husband returned to university and the parties put an arrangement into place where the father spent time with H each week from Wednesday 9:00am through to Thursday 5:00pm. That replaced the previous alternate Monday, alternate Thursday and alternate weekend arrangement. In addition to the two days that H spends with his father, he spends one day with the maternal grandparents and one day in child care. He is otherwise cared for by his mother on the remaining three days of the week.
Both parties indicated that changeovers were initially difficult. The husband said that this was because of the wife’s father, who would do what he could to wind him up. From 9 May 2006, changeovers were effected at a contact centre - initially the U Contact Centre and then at the L Contact Centre.
The law (in relation to children’s issues)
The law with respect to the determination of children’s issues has recently been amended with the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006. It is now incumbent on the Court to decide matters in accordance with that legislation. Section 65D of the Family Law Act 1975 provides that a Court may make such order as it thinks proper, subject to Section 61DA (presumption of equal shared parental responsibility when making parenting orders). Section 61DAA(1) states that where an order provides that a child’s parents are to have equal shared parental responsibility, the Court must consider: a) Whether the child spending equal time with each parent is in the best interests of the child; b) whether spending equal time is reasonably practical, and; c) consider making such an order. Since 61DAA(2) states that if the Court does not make an order for equal time in those circumstances, it must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests and whether spending substantial and significant time is reasonably practical. The Court must consider making such an order. The legislation also defines what is meant by ‘substantial and significant time’ and the matters to be taken into account when considering whether it is reasonably practical to make such an order. In deciding whether to make a particular parenting order in relation to a child, a Court must still regard the best interests of the child as the paramount consideration (Section 60CA). However, in determining what is in the best interests of a child, (Section 60CC) the legislation has created a set of primary and additional considerations. Section 60CC(2):
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Section 60CC(3): (3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) 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) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
Findings and conclusions
The first factual issue to be determined relates to the father’s health and weather it impacts on his capacity to care for H. Evidence was initially provided by Dr. R on 17 May 2006 in the letter to the father’s solicitors which letter is referred to at paragraph 16 hereof. The letter makes it clear that the father suffers from Post Traumatic Stress Disorder which has an excellent prognosis. It further states that he does not suffer from any other psychiatric disorder and Dr. R goes on to say that he “can see no reason why the father should not have overnight unsupervised contact for the period specified in the orders”.
That evidence is supplemented by the detailed report of Dr. R dated
16 October 2007which confirms his earlier advice that he is unaware of any psychiatric impediment to Mr Prescott in the equally shared caring of his son. Under the heading of “Progress” the report indicates as follows:
Initially, Mr Prescott went into a lot of depth discussing his various roles in Timor, the West Papua Project and his concerns about the Indonesian Military. In mid 2005 he had been questioned by the Federal Police and later spoke about how certain names, visions and smells would rekindle his PTSD symptoms. In such discussions, Mr Prescott presented as an intelligent, articulate man with a strong sense of human rights.
Later, and on several occasions since, Mr Prescott has been accompanied by his son H. H has always seemed well care for, well provided for with toys and other distractions and
Mr Prescott has interacted appropriately with his young son.
Mr Prescott did express some concerns about his son’s speech and cognitive development and his desire to attend to these. I was impressed that he realised that it was important that handovers of H were as stress-free as possible. He also though it was important that his son have the opportunity to say ‘good night’ to his mother on the telephone when Mr Prescott had access.
Mr Prescott has started triathlon training during the year. His mental state had remained quite stable. He was pleasant, co-operative and free from any significant mood disturbance. When he sought my permission to reduce his Venlafaxine, this appeared a quite appropriate course of action. This was done in September and the medication was steadily withdrawn over the next month. There have been no negative consequences as a result of this.
Mr Prescott resumed his university studies in 2007 and received the Executive Dean’s Commendation for High Achievement in his chosen field of study in September 1, 2007.
Together, Mr Prescott and H proceeded with swimming and gymboree lessons. H had his own bedroom when he visited his father and Mr Prescott appeared to have a healthy approach to all aspects of his son’s development. He has continued to speak constructively about using ‘flash cards’ to help H with his speech development, and his potty training.
It was gratifying to hear that H’s mother was going to take him down to the Gold Coast to see Mr Prescott compete in a triathlon. Mr Prescott now appears to appreciate the importance of speaking of his ex-wife to H in positive terms, and not being critical of her, as he can see the clear benefits for H.
Another recent example of Mr Prescott thinking and acting constructively was to let H take toys that he had been playing with back to his mother’s place rather than insisting he kept them at his house only.
In response to your specific questions:
1. Mr Prescott has suffered from Post Traumatic Stress Disorder. His condition is now in remission and as evidenced by his recent mental stability, university success and athletic training, he is emotionally quite well. In the long term he may be vulnerable to recurrences of Post Traumatic Stress Disorder at times of stress, but such stressors will be far less likely as he continues into his role as a civilian. I would also expect any future exacerbations to respond promptly to his treatment.
2. Mr Prescott is not currently taking medication prescribed by me.
3. I am unaware of any psychiatric impediment for Mr Prescott in the equally shared raising of his son, H.
4. In the time that I have known Mr Prescott, there have been no incidents which have caused me concern about his ability to care for and raise H.
In terms of predicting any relapse, Dr. R made it clear that the stressors that caused the original condition (that is, dealing with the miliary and the events that occurred in East Timor) are unlikely to be encountered in everyday life and in any event, if it does occur, it is clearly Dr. R’s view that it would be readily dealt with by treatment.
There is also the evidence of Dr. McGuire the family report writer who is also a qualified psychiatrist. Dr. McGuire at page seven of her report says as follows:
On 8.11.07 I spoke to Dr. R, treating psychiatrist for Mr Prescott. He commented that he is supportive of the original diagnosis of posttraumatic stress disorder but dubious about the diagnosis of bipolar II affective disorder. He stated that he had a good rapport with Mr Prescott, that Mr Prescott was doing well in his studies and seemed to be coping well clinically. He stated that he often saw him in company with H, that he was caring and thoughtful with the child, that he had observed him to change the child’s nappy and that in his care the child appeared content. He commented that any suggestion of paranoia was credible in the circumstances in which Mr Prescott had found himself on his return from East Timor and that he could see no reason why
Mr Prescott could not care appropriately for H. On occasions
Mr Prescott had been loud in the waiting room but he attributed this to personality factors rather than a bipolar II affective disorder.
Whilst I would agree that Mr Prescott does not show any signs of mental illness at present, there are some grounds for concern if the Court accepts the account of Ms Norrie regarding the child’s behaviour, in particular his regression and increased dependence after contact. It is my view that at this stage in his life, H is likely to have some difficulty with shared care simply as a function of his developmental level. I also believe that the tension occurring at changeover has a detrimental effect on the child.
It remains unclear whether Mr Prescott suffered a significant psychiatric disorder in the past but the indications are that at this stage, he is not exhibiting any such disorder.
In cross-examination, Dr. McGuire indicated that she was not convinced that the father has not suffered from a bipolar affective disorder in addition to the post traumatic stress and if in fact, the father had a bipolar affective disorder, it can be a recurrent condition that may be supportive of a view that he should not have larger blocks of contact. However at the same time, she was firm in her view that the father is currently not suffering from any mental illness and that he did not pose any danger to his son. She also conceded in cross-examination the fact that the father is in the ongoing care of a psychiatrist offers a security or some insurance with respect to a relapse. Indeed
Dr. McGuire’s reservation about larger blocks of contact with his father seemed to be related much more closely to her views about the possibility of H missing his mother, rather than any risk emanating from his father’s health.
The second factual issue that is of significance is the relationship that the child H has with each parent and the effect that any increased time with the father will have on those relationships and on the child’s well being. Dr. McGuire in her first report (7 April 2006) said of H’s response to both parents at page 5:
When he was seen with the child the parents arranged changeover smoothly. H was delighted to see his father. He was very affectionate towards him. The father played with him in a stimulating fashion and there was an obvious close bond. There was no inappropriate behaviour.
H was totally preoccupied with his father. He looked at me occasionally but was shy and didn’t make any contact until the end of the session with his mother when he waved to me and smiled at me. There was a very smooth changeover. The parents were co-operative.
When seen with his mother the child seemed more verbal and I would have thought equally bonded to both parents. Mother was also intellectually stimulating and H enjoyed the sessions with each parent. He presented as well nourished, well dressed and age appropriate. He interacted warmly and confidently with both parents. Both parents entered into his play wholeheartedly.
Dr. McGuire’s second report, in the second last paragraph says:
Whilst I would agree that Mr Prescott doesn’t show any signs of mental illness at present, there are some grounds for concern if the Court accepts the account of Ms Norrie regarding the child’s behaviour, in particular his regression and increased dependence after contact. In my view that at this stage in his life, H is likely to have some difficulty with shared care simply as a function of his developmental level. I also believe that the tension occurring at changeover has a detrimental effect on the child.
When cross-examined on the topic of who the child was bonded with, Dr. McGuire agreed that from her observations on 1 November 2006, she saw reasons to conclude that H was equally bonded with both parents and there was nothing to suggest that he is more bonded with one than the other. Certainly, the doctor indicated that if there was a primary parent, she could not identify which was the primary parent.
When cross-examined about the statement that there are some grounds for concern if the Court accepts the mother’s account regarding the child’s clingy behaviour and in particular, regression and increased dependence after contact, the doctor agreed that there might well be other factors that could lead to the child’s behaviour other than missing his mother who he sees as his primary parent. Counsel for the Independent Children’s Lawyer suggested that if H was not seeing his mother during the week Monday to Thursday because of her work regime, by the time Friday arrived, he would naturally be clingy. The doctor agreed with this proposition.
There was some further illuminating cross-examination of Dr. McGuire by counsel for the husband as follows:
Yes, what I am suggesting to you, isn’t it a more likely explanation that this is a little boy who as we progress through a week, getting a bit tired as week all do, finally gets to spend a day with Mum on Friday and he is clinging to her?
Yes, I think that’s right and of course one of the problems with separated parents is that the child has cognitive experiences with each parent but it is just – it necessarily means that he is separated from the other one so it’s a combination of positive and negative effects on the child.
But one assumes if he has been pro-active with Dad on Wednesday ad Thursday, if you know what I mean by pro-active, actively engaged with his Dad for two days…?
That he might be tired.
Might be tired, but also, you know, when he gets back to Mum it’s time to be clingy to Mum?
Yes, and it is not unusual for children of separated parents to find transitions very difficult and the younger the child is more likely to…
And in terms of your, you say in general children of this age, and we are talking, he is now just turned three, in general it is better for them to spend more time with one parent, correct?
Yes, I think so, so long as they are happy in identification of the primary parent.
Which they can’t be in this case?
No, it is very difficult in this case.
And again, against a background where, lets assume that the mother’s program is going to continue, that is, work Monday to Thursday, do you understand?
Yes.
And assume that, not a great deal of time she gets to spend with H in that part of the week?
No.
Given that she has to get up early and come home late from her job in the CBD?
Yes.
And H’s bedtimes and rising times, taking those things into account, in that scenario, Mum gets to spend Saturdays and Sundays lets say, with H?
Yes.
Quality time, do you like that expression Doctor?
Not particularly.
No, I didn’t think you did.
No offence.
But you do know what I mean to infer by it, that is, time one on one with Mum?
Yes.
In that sort of a scenario, what I am suggesting to you, an extension of the current two days and one night to three days and two nights, would be something that is still within your generalised “spending more time with one parent than the other”?
Sorry, three days and….?
Well he is currently spending two days and one overnight period with his Dad?
Yes.
What I am suggesting is three days and two overnights with Dad, in circumstances where we know he spends a day in day care, a day with his grandparents, I am asking you to factor in the reality for H?
Yes it is possible that that might be helpful for him. I can’t really say it with certainty but it’s possible.
Well let me put it this way, is it better for H to spend a day in day care or to spend it with his Dad?
With his Dad.
And is it better for H to spend a day with his Dad than with his grandparents with whom he otherwise lives, in other words he gets, you can assume, ample opportunity to interact with his maternal grandparents?
Yes.
Conclusion
The first matter to be determined is what living arrangements are appropriate for H pending his commencement of preparatory school in 2010. Following the conclusion of final addresses, each of the parties forwarded minutes of the orders that they proposed should be made. Although the mother’s position was essentially contained in paragraphs 259 to 261 of her affidavit filed 30 October 2007. The mother was really seeking orders in accordance with the current arrangements. That is, that H live with his father for two days and one night each week and spend time with him from 12:00pm until 4:30pm each alternate Saturday. She further proposed that the father spend four blocks of four days each 12 months on giving 28 days written notice.
The father proposes that H spend three days and two nights immediately and three days and three nights with him from 1 July 2009. He also proposes that the four blocks of time should be one week and that each of the parties should be entitled to take H for these one week blocks on the giving of 14 days notice. The Independent Children’s Lawyer proposes that there be two days and two nights moving to two nights and three days from 1 January 2009 and from June 2009 to three nights and four days.
This is a matter in which both of the parties agree there should be equal shared parental responsibility but pending the child’s commencing preparatory school, the father is proposing that H spend substantial time with him rather than equal time. What is clear in this matter is that H is a well loved little boy who has an extremely close relationship with both of his parents. His mother works four days each week from Monday to Thursday and on those four days, H attends a day care centre; one day he is looked after by his grandparents and he spends the remaining two days and one night with his father. His father is a full time student but has a much more flexible timetable and says he is able to care for H three days and two nights initially and then three nights and three days from 1 July 2009. While the father has suffered Post Traumatic Stress Disorder, his health has improved remarkably in the last 12 months. The evidence of his treating psychiatrist, Dr. R is that he is not a risk to his son and that he does not currently suffer any mental illness. Further, his evidence is that any relapse in his condition would be readily apparent and pursuant to the monitoring provisions proposed by the Independent Children’s Lawyer, that information would be conveyed to the mother promptly. While Dr. McGuire has some different view about the initial diagnosis of a bipolar condition in addition to the Post Traumatic Stress Disorder, she also was of the view that the father was not currently suffering from any mental illness and did not pose a risk to H in that regard. Indeed, Dr. McGuire’s real concern was that if H’ primary attachment was to his mother, then additional time away from her may cause him stress. The doctor however, is not able to say that H identifies more with one parent than the other. Further she says that changes in his behaviour as described by the mother may be attributed to a number of other causes, including the fact that the child sleeps in the mother’s bed.
What the doctor is certain about is that H is better spending the time with his father rather than being in the care of his grandparents or the child-minding centre. Ultimately what I propose to order is not a lot of time away from his mother, one extra night in the first 12 months and two after that in circumstances where the mother leaves the home early and is not home until after 6:30pm each evening. In addition to fitting in with the parties’ working arrangements, the geography of the parties’ housing and the proximity to the child care centre and the L Contact Centre mean that the arrangements are certainly reasonably practical. While there is still a strained relationship between the husband and wife’s parents, that initially seemed to stem from various behaviours by the husband and allegations made about the wife’s father whilst his health was at it lowest. However, I am satisfied that the parties’ ability to co-operate and communicate continues to improve. Perhaps the best evidence of that is that the mother, to her credit, was able to bring H to watch his father compete in a triathlon and spend time together at the conclusion of that event. That occurred in September of last year.
The only real negative aspect of the increase in time than H spends with his father is likely to have is that it may well increase the anxiety level of the mother who clearly will worry about H in the care of his father for an increased period of time. She has seen the way in which the father’s health has affected his behaviour prior to the last 12 months and it is understandable that she feels anxiety when regard is had to some of the father’s behaviour and in particular I refer to the book titled: ‘Come with Daddy: child murder suicide after family breakdown’. Clearly, it is not in H’ best interests that his mother suffer unnecessary anxiety and it is for this reason that the orders for increased time will be by way of a gradual increase. Further, I have not extended the weekday contact to start at 9:00am Monday (as proposed by the Independent Children’s Lawyer) because the father has not sought that additional time. While I propose to accede to the father’s proposals for four blocks of one week, I further propose to order that if possible, the father arrange for his mother to be present during these block contact periods. However, I do not intend to make it a condition of the block contact occurring, it is important for the father to understand that he do all that he can to alleviate any anxiety suffered by the mother. His ability to do that may well impact on the likelihood of agreement being reached on a shared care regime once H commences preparatory school. Accordingly, I propose to make orders in the terms of paragraphs one to 16 pending H commencement of preparatory school and I am satisfied that these are in H’ best interests.
While the Court has been asked to make a determination about two matters following the child commencing preparatory school, in my view, it is not appropriate to do so. Firstly, the Court has been asked to determine whether there should be a shared week about regime or some other arrangement; and secondly, what school H should attend. Initially, there was an attraction of finally bringing these proceedings to an end and making orders; however, there are a number of unknown factors at this stage, which in my view preclude the making of orders in relation to these two issues. By the time H is ready to commence preparatory school, his father presumably, will have completed his studies and will be seeking to get back into the workforce. The mother, even if she remains in her current employment, may seek to relocate. Both parties are likely to form new relationships and those relationships may have an affect on whether a shared care arrangement will work. At this stage the parties cannot even agree on which school H will attend and that in itself may well impact on whether a shared care arrangement will work for H. While I have said the parties’ ability to communicate and co-operate is improving, I had an impression that the father’s preparedness to negotiate schooling arrangements was somewhat intractable. If that is still the case in two years time, it is hardly evidence of the type of co-operation that is required for a shared care regime in terms of week-about to work. In any event, I am satisfied that the Court is not currently in a position to make final orders about these issues. Accordingly I propose to make orders in the terms set out herein.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Connolly FM.
Associate: Averil Manners
Date: 24 January 2008
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