SALT&SALT

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALT & SALT

[2015] FCCA 1646

Catchwords:
FAMILY LAW – Parenting – residence – spend time with – parental responsibility – stability and consistency for children – family violence – overseas travel.

Legislation:

Family Law Act 1975, ss.60CC(2), 60CC(2)(ii), 60B, 60CC(3), 60CC(2)(ii), 61DA, 61DA(2)

Evidence Act1995, s.140(2)

Applicant:

MR SALT

Respondent:

MS SALT

File Number:

MLC 11354 of 2013

Judgment of:

Judge Stewart

Hearing dates:

27, 28, 29 & 30 January 2015

Date of Last Submission:

30 January 2015

Delivered at:

Melbourne

Delivered on:

3 February 2015

REPRESENTATION

The Applicant appeared in person.

The Respondent appeared in person.

Counsel for the Independent Children’s Lawyer:

Mr Combes

Solicitors for the Independent Children’s Lawyer:

Agricola Wunderlich & Associates

ORDERS

The Mother and Father have equal shared parental responsibility for the children, X born (omitted) 2011 and Y born (omitted) 2012 (“the children”).
As and from 9.00am on 4 February 2015, all previous parenting orders in relation to the children be and are hereby discharged.
The children live with the Father.
The children spend time with the Mother as follows:-
(a)Each alternate weekend from after school (or 3.30pm) on Friday to the commencement of school (or 9.00am) on Monday and to be extended to Tuesday if the Monday is a public holiday, such time to commence on 13 February 2015;
(b)In each other alternate week from the conclusion of school Thursday (or 3.30pm) to the commencement of school (or 9.00am) on Friday, such time to commence on 5 February 2015;
(c)Each Tuesday from 3.30pm until 6.30pm;
(d)On each of the children’s birthdays at times to be agreed and failing agreement as follows:-
(i)from 3.30pm to 6.30pm if a school day;
(ii)from 12 noon to 4.00pm if a non-school day;
(e)From 3.00pm on Christmas Eve to 3.00pm on Boxing Day 2015, and each alternate year thereafter;
(f)From 3.00pm on Christmas Day to 3.00pm on Boxing Day 2016, and each alternate year thereafter;
(g)The Mother spend time with the children over the Easter period as follows:-
(i)from 6.00pm on the Thursday prior to Good Friday to 6.00pm on Easter Saturday in 2015, and each alternate year thereafter;
(ii)from 6.00pm on Easter Saturday to 6.00pm on Easter Monday in 2016, and each alternate year thereafter;
(h)During school holidays at times to be agreed and each of the parties have liberty to apply as and from 2017 with respect to school holiday time (AND THE COURT NOTES THAT in the event that this occurs there shall be no need to raise a change of circumstances argument at that time);
(i)From 5.00pm on the Saturday evening before Mother’s Day to the commencement of school on the Monday following Mother’s day;
(j)On the Mother’s birthday as follows:-
(i)from 3.30pm to 6.30 on school day;
(ii)from 12 noon to 4.00pm on a non-school day;
(k)At such further and other times as may be agreed between the parties from time to time.
In the event that the Father or the children’s birthday fall on a day that the children would normally be in the Mother’s care pursuant to these orders, the Mother’s time with the children shall be suspended as follows:-
(a)From the 3.30pm to 6.30pm if a school day;
(b)From 12 noon until 4.00pm if a non-school day.
The Mother’s time with the children be suspended as follows:-
(a)From 3.00pm on Christmas Day to 3.00pm on Boxing Day 2015, and each alternate year thereafter;
(b)From 3.00pm on Christmas Eve until 3.00pm on Christmas Day 2016, and each alternate year thereafter;
(c)From 6.00pm on Easter Saturday to 6.00pm Easter Monday in 2015, and each alternate year thereafter;
(d)from 6.00pm on the Thursday prior to Good Friday to 6.00pm on Easter Saturday in 2016, and each alternate year thereafter
(e)From 5.00pm on the Saturday evening before Father’s Day for the remainder of that weekend;
(f)At such further and other times as may be agreed between the parties from time to time.
By consent, each of the parties shall be able to communicate with the children by telephone or other electronic means at any reasonable time and for any reasonable period of time when the children are not in their respective care.
All changeovers for the purpose of facilitating the Mother spending time with the children shall take place at either the children’s day care centre and/or schools, if convenient, and otherwise changeover shall occur by the Mother collecting the children in a business like fashion from the Father’s home at the commencement of time and the Father collecting the children in a business like fashion from the Mother’s home at the conclusion of time.
Each of MR SALT and MS SALT and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X born (omitted) 2011 (male) and Y born (omitted) 2012 (male) from the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing the name(s) of the said child or children on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child or children’s name(s) on the Watch List for a period of two years.
Upon expiration of the period referred to in Order 10 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List.
The children’s passports be held by the Registrar of the Melbourne Registry of the Federal Circuit Court of Australia.
Each of the Mother and Father keep the other informed in writing of any change to their contact telephone number or email address within 24 hours of such change.
Each of the Mother and Father provide the other with no less than 7 days prior written notice and particulars of any change of residential address.
Each of the Mother and Father be at liberty to attend any child care centre, kindergarten or school activities attended by the children or either of them, to which parents are ordinarily invited.
Each of the Mother and the Father are at liberty to liaise directly with any child care centre, kindergarten or school to obtain information about the children’s progress or either of them, and these orders act as an authority for same.
The Mother and the Father each inform the other forthwith of any serious illness or injury to the children or either of them whilst in that parents care, and provide the other parent with contact details for the medical practitioners involved in the children’s care.
The Mother and the Father forthwith each attend a post-separation parenting program at either Relationships Australia or Life Works.
Each of the parties ensure that the children attended for their medical needs (save and except in the case of an emergency) at:-
(a)the (omitted) Medical Centre; or,
(b)Dr A (Paediatrician); or,
(c)such other paediatrician or other expert medical practitioner to whom the children or either of them are referred by Dr A;
unless otherwise agreed between the parties in writing.
The Mother forthwith do all such acts and things to obtain a referral for and consult with a neuropsychiatrist as she may be referred to by her general practitioner and thereafter abide by all lawful directions of the said neuropsychiatrist.
The Mother forthwith provide an irrevocable authority to the neuropsychiatrist referred to in order 20 hereof, so he/she may:-
(a)advise the Father if there are any issues pertaining to the Mother’s health including, but not limited to, her psychological and psychiatric health which would seriously impact on her capacity to care for the children (but nothing in this authority shall authorise the said neuropsychiatrist to discuss the Mother’s treatments or medical condition with the Father in detail);
(b)Any attempt made by the Mother to revoke this authority.
Within 7 days the Mother provide the children’s Birth Certificates, medical records, Immunisation Certificates to the Independent Children’s Lawyer who will make certified copies of the documents, return the originals to the Mother and provide the certified copies to the Father.
Each of the parties do all such acts and things as may be necessary to advise, and keep the other advised, of external care provided to the children from time to time in excess of 4 hours at a time.
In the event that either of the parties cannot care for the children or either of them for a period in excess of 24 hours they forthwith notify the other party and provide them with the first option to care for the children.
Each of the parties advise and keep the other advised on a continuing basis of any physical health condition which has the potential to impact on their ongoing care of the children.
The appointment of the Independent Children’s Lawyer is hereby discharged as and from 17 February 2015.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in these orders.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

AND THE COURT NOTES THAT:

(A)The Father shall cause the Mother’s personal documentation (if any) and photographs to be transferred to the Apple MacBook Air.
(B)The Father agrees for the children to spend time with the maternal grandmother on 9 February 2015 in order for the children to say goodbye to her.

IT IS NOTED that publication of this judgment under the pseudonym Salt & Salt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11354 of 2013

MR SALT

Applicant

And

MS SALT

Respondent

REASONS FOR JUDGMENT

These are proceedings in relation to two children of the parties, X born (omitted) 2011 (“X”) who is aged three and a half, and Y born on (omitted) 2012 (“Y”). The dispute between the parties is who the children live with and the issues in dispute between the parties are with respect to both that issue and also an issue as to parental responsibility.
Each of the parties apply for the children to live primarily with them, and each of the parties apply for the other party to spend very regular time with the children. Further, each of them apply for sole parental responsibility with respect to both medical and schooling issues, although, I think, in fairness the Mother was applying mostly in relation to the schooling issue.
This case revolves around the nature of the relationship between the children and each of their parents, and the children have been assisted by an Independent Children’s Lawyer who appears on their behalf during the trial of these proceedings. The trial of this proceeding took place over a number of days and each of the parties appeared as self-represented litigants and filed numerous affidavits in the proceedings. Each of the parties presented their case adequately and I am satisfied that each of them understood the procedure and were able to present their case in the best way possible.
In this case there are a number of facts that have been put forward by the parties, some of which are more relevant than others. At the commencement of the proceedings I noted that the Father had filed an affidavit of some 229 pages together with annexures and I indicated to him that that affidavit was prolix and it was not an appropriate document to put before the Court. The Mother's affidavit material was not as prolix as the Father's, however was also replete with irrelevant material. Such are the difficulties that face the Court when there are two self-represented litigants.
The Independent Children’s Lawyer had a position at the commencement of the proceedings which was that the children spend very regular time with the parent with whom they are not living. The Independent Children’s Lawyer supported that the Father have primary care of the children and the Independent Children’s Lawyer, at least as a preliminary position, supported the recommendations of Dr M who prepared a Report dated 28 March 2014 and who was cross-examined by the parties.
Dr M during the course of her cross-examination amended her position and that was based primarily, on a view by her that the Father presented as the more stable parent in the proceedings and that, at this stage of the boys' lives, was what they actually need; that is, stability.
Dr M presented a position where she thought that the appropriate arrangement would be that the children live with their Father primarily but spend substantial and significant time with the Mother on each alternate weekend from Friday to Monday, each alternate Thursday from Thursday to Friday and for dinner each Tuesday. At this stage it was not recommended that the children spend any periods of substantial time with the Mother and that staged up holiday time occur over the course of the next few years.
In dealing with an application by the Mother that she be permitted to take the children overseas on a holiday to (country omitted) to see her family, the Independent Children’s Lawyer indicated that such an order at this stage was not appropriate, however could be considered at some stage in the future when the living arrangements and the stability of the boys had been cemented. Further, the Independent Children’s Lawyer recommends joint parental responsibility.
A Dr D, psychiatrist, gave evidence in relation to the psychiatric presentation of the parties and, in respect of the evidence that he gave and upon which he was cross-examined, he gave evidence with which Dr M concurred that the Mother would benefit from having a treating neuropsychiatrist who would be able to assist her in issues that present. Throughout the course of these reasons I will come to the serious health and emotional difficulties that face the Mother and how they might impact on her parenting capacity.
The Independent Children’s Lawyer indicated that there should be some streamlining of medical care for the children and I note that the Father had sought sole parental responsibility for medical care in addition to schooling. The Independent Children’s Lawyer indicated that there should be one or two doctors attending to the children with the Father being a person who preferred to use a paediatrician for their care rather than simply using a clinic.
To turn to the antecedents of this matter.
The Father was born on (omitted) 1978. He is aged 36 years and he is employed as a (occupation omitted) in the (employer omitted). At the moment he is working at (employer omitted).
The Mother was born on (omitted) 1982, so she will shortly be 33 years old.
The parties met on an internet dating site and they married shortly after.
The Mother was living in (country omitted) at the time the parties met and she had been living in (country omitted), which will become important in a moment. The Father had been living in (country omitted) working on a (omitted) basis but he became a permanent resident of Australia in 2009. The parties' ethnic backgrounds, as I understand it, is (nationality omitted) on the part of the Mother and (nationality omitted) on the part of the Father.
The parties met in (country omitted) and, it seems rather quickly, the Father proposed to the Mother. The Mother came to Australia for three months in (omitted) 2010 and they were married in Australia in (omitted) 2010. They returned to (country omitted) and, it seems, had a second ceremony of marriage in (omitted) 2011. The Mother was eligible for a spouse visa to come to Australia and she returned to Australia in (omitted) 2011. They were together for three and a half years until they separated in December 2013. Their marriage produced two children.
It seems on both parties' parts, at least historically, they were very much infatuated with each other, however that deteriorated quickly. The Mother says that the Father was emotionally controlling and manipulative during the marriage and she experienced three episodes of pushing and shoving during the marriage.
She says that she experienced her treatment during the marriage as being one of being subjected to family violence and coercive and controlling behaviour, and that is very much at the cornerstone of the way she puts her case. She also uses the example that she feels that she has been economically controlled by the Father and that he has failed to appropriately support her and the children.
The Mother is clearly highly intelligent from my observations of her and she has assiduously applied herself to obtaining employment to support herself and the children, and for a period in Australia she was without Centrelink benefits because she was not eligible for the same.
The parties separated on 27 December 2013 when the Father was served with an Intervention Order and asked to leave the family home in (omitted). What happened after that is relatively unclear, but it seems that the proceedings were fairly quickly issued in this Court with the Father being concerned that the Mother would remove the children from Australia. Indeed, in a passage of evidence which does the Father no credit at all, when he was cross-examined by the Independent Children’s Lawyer it became abundantly clear that at the time he left the former home he left and took, not only his own motor vehicle, but also took the Mother's car keys so that she was unable to have access to a motor vehicle.

Procedural History

The matter first came before the Court before Judge Baumann on 27 December 2013 where he made a Federal Airport Watchlist order. One assumes that such an order was made as a matter of urgency on an after hours basis because the Court would not have been operational at that time.
At this juncture it's appropriate to record that the proceedings were issued on 31 December 2013 and what should be noted is that they were issued during a period where the Court was on an emergency timetable only. They were issued as a matter of urgency. The matter came before the Duty Judge, at that stage Judge Jones, on 7 January 2014. On that day there were interim orders made by consent and the Father was represented and the Respondent Mother appeared in person.
The orders that were then made on 7 January extended the Airport Watchlist order and ordered that the parties have shared parental responsibility for the children, that the children were to attend day care on all days that the parties were working at a particular day care centre, causing the children to attend day care on other particular days when one party was working and ensured that the children continued to live at the (omitted) property. Each of the parties were restrained from moving the children, or either of them, from the Melbourne metropolitan area.
It seems that each of the parties were then permitted to peaceably occupy the (omitted) property, and I note that the Father had by 2 January obtained a variation of the interim Intervention Order which allowed him to resume occupation of the former matrimonial home. Following that order the proceedings were adjourned before Judge Hughes on 23 January 2014.
On 23 January 2014 the matter came before the Court and, again, interim orders were made by consent. Those interim orders provided that X and Y live with both of the parties, but primarily with the Mother, and would live with their Father each Monday and Friday from 10.00am until 5.00pm, each Wednesday from 4.00pm until 10.00am on Thursday, and each Saturday from 9 .00am until 2.00pm.

In the event that either party was unable to provide care for the children pursuant to those orders then the other party was to be given the first option for providing care. There was to be a changeover at the early learning centre where the children attended as a fallback position, and there were various other holding orders and specific issue orders.
Significantly at this time there are orders for the parties to attend on Dr M for the preparation of a Family Report and also an order that the parties attend upon Dr D for the purpose of the preparation of psychiatric assessments and reports. There were various other property orders, and I should note, for the record, that the property matters between the parties which commenced before me were settled by them and I made orders last week.
The matter came before the Court on 7 April 2014 before Judge Hughes. On that date there were some procedural property orders made but the proceedings were adjourned to 8 May for Interim Hearing. On 8 May the matter was adjourned to 12 May and by that stage the Report from Dr M had been received by the parties.
The Report from Dr M is extensive and was written following attendances on the parties on 28 January and further attendances by Dr M in March upon the Mother's neurologist, the Mother's gynaecologist, the Father’s psychologist Mr M, and a telephone interview with the children’s Early Learning Centre. The recommendations of the Report, if I turn firstly to those, were no doubt devastating for the Mother.
At paragraph 70 of her Report Dr M records that:
On the basis of the information available, and given the children's age and stage and their need for some predictability, consistency and stability in their lives, I’m inclined to believe that the father should be given a chance to show that he can care for these children in a more primary role…
She goes on to say:
...as I suspect that this is likely to result in the mother remaining quite involved in any case, whilst giving the father some measure of control over providing the children with predictable and consistent routines, and at the same time allowing him to set these routines, and work shifts around them.
Further, she goes on to say that:
In contrast, if the children remain residing primarily with the mother, then the current chaotic living and contact arrangements are likely to continue, and the whole family is likely to suffer if the father cannot work enough hours to provide for the children; and similarly, that the children are likely to begin showing more significant problems and symptoms if this chaotic lifestyle continues for them.
She goes on to say that:
To this end, I think the best way forward for these children, at least for the next few years, is for them to reside primarily with their father, whilst still spending substantial time with their mother, and possibly something like every second Friday and Saturday night from 5pm Friday until5pm Sunday.
At the time Dr M wrote this Report she had not received any psychiatric assessments in relation to the parties and she indicated that she thought it would be prudent for her to consider those and, if necessary, to provide a short addendum. She noted at that stage that the children were attending child care every weekday and she recommended that there be a review of the matter in four to six months time.
As I said, the matter came before the Court on 12 May and it ran to a defended interim hearing before me. On that date, and having regard to the fact that the Report was but one piece of evidence, and at least to that stage it was at least arguable that the children had been in the primary care of their Mother for reasons that I will come to shortly, the Court determined that in a most difficult case that the children should live with their parents on an equal shared care basis and that such shared care basis would essentially have the children moving from day to day between their parents, which is the arrangement that has subsisted to date.
Perhaps it may have been more appropriate to record this earlier but, notwithstanding the orders for the children's care prior to May 2014, the parties continued to spend many nights together in their respective homes, mostly at the (omitted) property as I understand it. The parties, whilst not necessarily continuing their relationship on a complete basis, did continue their sexual relationship until, from recollection, about February 2014. There is a dispute between the parties as to whether or not there was sexual contact between them on 12 March. On the Mother's case such contact occurred and was non-consensual and on the Father's case no sexual contact at all took place at that time.
What is apparent from the cross-examination of the parties is that right up until Dr M's Report was released on 28 March 2014 the parties simply did not separate their interactions between each other and were both significantly caring for the children and most of the time, or at least for a good proportion of the time, were caring for the children together. For instance, the Mother's evidence during cross-examination is that she would sometimes come and stay at the home of the Father on nights when she was to collect the children because she was late arriving home from her employment and did not want to disturb the children from their sleep.
It seems that the arrangement limped along until the Report of Dr M at which time the Mother reverted to the previous arrangements for the children pursuant to orders being that the Father spend a couple of days a week and one overnight per week with the children.
In order to understand the concerns that I have in relation to the Mother, it is of importance to note that she has very significant health difficulties which are set out in her affidavit but which are described in the Report of Dr M. Her health difficulties, I find, have a physiological basis and there seems to be a general consensus between Dr M and Dr D that this is so.
The Mother described her health conditions to Dr M at paragraph 32 of Dr M's Report. She told Dr M that she has medical issues at the moment, and specifically she has a condition called Lupus, which is a chronic disease that impacts on her kidneys and tendons and requires her to take medication and, additionally, she stated that her blood pressure often drops. She reported that she also has uterine bleeding.
She said, and to some extent this is to her credit because it seems to me that this Report is accurate:
…when she is not feeling well she will often call the father and ask if he wants the children, or wants to spend the day with her; and she insists that if she was really unwell, and/or if it got to the point whereby she wasn’t able to look after the children, then she would say that they are better off with him; but she insist that this has not been the case; as she has never been so unwell that she can’t look after them.
The Mother said to Dr M that she just thinks that if she is unwell then the children may as well spend time with the Father so that they may spend the day doing things as opposed to spending the day inside with the Mother. She stated that there are also days when they are at home and the children are sitting in front of the television and so she had been giving the Father extra time because he has allegedly changed and, for a variety of reasons, she went on in the Report indicating that he was able to take them to play centres and the like and she did not want them sitting around when they can be stimulated.
There were significant issues raised with respect to the Mother's capacity to care for the children on the basis of her physical health, and she was cross-examined by the Independent Children’s Lawyer with respect to occasions where she may have been well enough to care for the children but allowed the Father to care for the children. As I have indicated during the course of addresses, and particularly during the address from the Independent Children’s Lawyer, I do not regard the Mother's physical health as something that would prohibit her or mean that she was not physically able to care for the children.
No doubt from time to time there would be times when the Mother’s physical health impacted on her capacity to care for the children in a physical sense, however the evidence would suggest to me that at all times when that has occurred she has appropriately called upon the Father to assist her in that regard. The process is not to criticise someone for any physical illness that they might have but rather to weigh the competing proposals between the Mother and the Father in an overall sense in order to determine what arrangement might be in the best interests of the children.
There is, however, an additional complicating factor in this matter with respect to the Mother's health. There was a concerning incident that took place in (country omitted) well before the parties commenced even their relationship. It is partly for that reason that Dr M sought that a report be prepared by a psychiatrist. Dr D, psychiatrist, prepared a Report dated 6 May 2014, which is annexed to an affidavit filed by the Independent Children’s Lawyer on 27 January 2015. Dr D took a lengthy history from Ms Salt and he was cross-examined in these proceedings.
The incident involving the Mother in (country omitted) in 2009 involves an incident where she was, and I am still unclear about this, but she reported that she was assaulted by persons in (country omitted), including severe cutting to her body. Dr D reports this presentation as follows:
Ms Salt's presentation was mostly unremarkable. She appeared to be an intelligent woman who provided a reasonably detailed and objective account. However, Ms Salt’s account of her past psychiatric history as it pertained to a prolonged admission to a clinic in (country omitted) in 2009 was limited and mostly uninformative. The relative absence of detail regarding this admission was critical.
He goes on to say that Ms Salt presented as medically well providing a history of complicated Lupus, which he describes as SLE. He goes on at page 3 of his Report to say as follows:
Ms Salt reported experiencing an "episode" in 2009 in (country omitted).
The word "episode" is in quotation marks and I assume that that is the way the Mother described it:
Ms Salt caught a train home from work. She exited a train station and recalled being grabbed by three people and assaulted with a knife. She then gained consciousness in an empty field. She attended a train station bathroom and called her partner. The police attended. Photos were taken of her wounds.
It was noted that the initials, (omitted), were engraved into her thigh, depicting an extreme right-wing political party. Ms Salt remembered someone attacking her, but had learnt it did not happen. Doctors considered wounds were self-inflicted, but she did not accept this explanation, as she had scars on her back that could not have been self-induced.
It seems that, according to at least Dr D's Report which was not challenged in this regard in cross-examination, that a psychiatrist at that time diagnosed a post-traumatic stress disorder that the Mother later became depressed and she was admitted to a psychiatric clinic for four months. The Mother understood that doctors thought she experienced a "dissociative episode" leading to her cutting herself and that she experienced similar episodes in the clinic. She was prescribed anti-depressant and sleeping medication and she continued to attend a psychiatrist for weekly psychotherapy. She also understood that her Lupus was raised as a contributing factor.
Ms Salt reported the alleged abuse of her by the Father to Dr D, including the statements that he allegedly called her lazy, incompetent and stupid, progressing to whore and promiscuous, but she was also able appropriately to acknowledge that the parties had some happy times during the marriage. She noted that, from her point of view at least, there was some significant financial issues dominating the marriage and she alleged that the Father was obsessed with money.
At the conclusion of that Report, at least insofar as it relates to the Mother, Dr D reports that he was unable to obtain further history from the Mother. The Mother was cross-examined about her capacity to obtain medical records from (country omitted) and the suggestion at least being that she had made no real attempt to obtain those medical records from (country omitted). The Mother said that she had not approached the appropriate body in order to obtain those records.
To the extent that there is an inference that I should be critical of the Mother in relation to failing to obtain those reports, whilst it is a matter of some concern, I do not regard the Mother as being unduly secretive about most things and in that regard I am prepared at this stage to accept her view that she just simply did not and was not aware of the appropriate legal body to contact in (country omitted) to obtain reports. What it does leave, however, is a hiatus in the evidence and it is quite clear that the medical records may have been helpful. In the ultimate it will not make much difference to this case for reasons that I will come to shortly.
I also note that Dr D in the preparation of his Report obtained information from other sources, a Dr A, Assistant Professor of Psychiatry and Psychology, and a Dr S who is a Rheumatologist. I also note that in the opinion and recommendations Dr D assessed that:
This is a highly peculiar -
he talks about the incident in (country omitted) and says:
This is a highly peculiar element to Ms Salt's history, and unfortunately, without better understanding leaves a significant gap in appraising her complex presentation. If Ms Salt feigned such a dramatic presentation, it certainly raises significant questions regarding her psychological profile.
Dr D concluded at page 13 of his Report that:
Ms Salt clearly requires ongoing medical management with her team of specialists and GPs. It’s possible that she also requires input from a psychiatrist.
I should pause at this stage to note that the Mother quite willingly indicated that she is prepared to engage with a neuropsychiatrist, as had been recommended by Dr D, and I will make that order.
Dr D goes on to say that Ms Salt's medical or psychiatric condition could feasibly contribute to functional difficulties that impair her parenting capacity. However, she seemed to impress that she coped well, although the doctor did query whether or not she required considerable support. If it had have been just this one incident, given all that has transpired and the arrangements that the parties have made for the care of the children, including their own proposals that the other should spend substantial and significant time with the children, in my view it would be less important.
However, there was a concerning aspect of the evidence which emerged after Dr D had given his evidence in the proceedings and resulted in the Father being recalled because what I am about to describe did not appear anywhere in the Mother's affidavit, (notwithstanding that she says that the family violence issues between she and the Father are very important in the proceedings), and upon which no question was put to the Father until he cross-examined the Mother, as I recall, on some medical records.
The Mother alleges that on 12 March 2014 she attended at the Father's home to stay the night with the children, she being due to collect them after work but decided not to wake them. It must be remembered that this is during the period prior to the release of Dr M's report but following the initial orders that had been made. So it is during the period where the parties had, at least up until January or February, continued their sexual relationship and at a period when their lives continued to be entwined, notwithstanding the period of separation between them since December.
The Mother alleges that in relation to that evening the Father forced her to have sexual intercourse with him and, indeed, she attended at the Department of Emergency Medicine at (omitted) Medical Centre in (omitted), and I think from recollection, although I cannot see the date on the report, she attended on the next day. Her evidence was that she attended at around 5.00pm the next day. The medical record is marked as exhibit ICL1.
It reads as follows, that:
Pt reports abdo cramps and vaginal pain for several months but recently worsening to genital area, states pain is internal and denies discharge/bleeding. Mod pain, has taken Panadol osteo 1500hrs. Looks well, afebrile. Requesting female DR. PHx- endometriosis, lupus, allergy maxolon.
Under the heading “Principle Presenting Problem” the record indicates pain in the vagina
Under the heading “History of Presenting Problem” the patient said that:
Pt has pain in vagina post sexual intercourse with her partner last night
Pt thought that there would be some abrasion in the vagina.
Nil instrumental introduction
Nil bleeding
Pain has improved with Panadol and endone
It goes on to say that:
Pt only revealed that smth “bad” happened last night after speculum examination
She said this has happened many times and legal advice was involved but she did not have enough money to bring the case to the court
Pt requested for "medication" to calm her nerve as she is "traumatised"
PT said she has approached many support groups w/o much success
She was observed to be teary and on a genital examination it was noted that there was a minor split in the right-side of the labia minora. The provisional diagnosis was that the Mother had been sexually assaulted and she was referred to see CASA. In a progress report note at the bottom of the page it is reported that:
I -
being the author of the report -
asked pt, "Could I say that last night u were sexually assaulted?" Pt said, "kind of"
Pt said that her partner is a (occupation omitted), very difficult to deal with.
As I said, this emerged during the course of the evidence. Until then it had not been reported at all by the Mother in the course of these proceedings. In my view it defies imagination that the Mother would raise serious issues of family violence in terms of the way the Father has allegedly treated her but would fail to raise such a serious allegation as I have just described, including the prospect that it had happened "many times". The Father was recalled so that he could be cross-examined about this issue.
I should note that I observed the Father during the course of the Mother being cross-examined about this issue by the Independent Children’s Lawyer and also during the course of his own evidence. Although I have some reservations about the Father's presentation, which I shall come to shortly, he did at this point strike me as being genuinely distressed and distraught about this particular issue and his denials, in my view, struck a chord as being entirely genuine. Not only did he deny that he had had non-consensual sexual intercourse with the Mother, he also denied that he had had sexual contact with her at all on that evening.
The Mother's allegation is exceptionally serious. I take into account the fact that there appears to have had an abrasion which would tend to support the Mother's assertion, however I do note that there was a period of time that had elapsed between the alleged assault and when she attended at the hospital. I do not know what to make of that. It seems that she had a concern that she would not be believed and it was for that reason that she said that she had not reported the matter in either of her affidavit or, indeed, during the course of her evidence during these proceedings.
I cannot ignore the fact that the Mother has the history of what occurred in (country omitted) in 2009, and I cannot ignore the fact that there are some question marks over what had occurred. As I have said, had that incident in (country omitted) been in isolation that would not have caused me any concern continuing into the future with the children. The issue that arose in my mind was with this recent incident and being raised as it is where I cannot be satisfied on the requisite standard according to section 140(2) of the Evidence Act 1995, and in particular having regard to the seriousness of the assault alleged, that such an incident has occurred. I also take into account the Father's denials and, in this aspect, I prefer the evidence of the Father to the evidence of the Mother.

I then turn to the issue of whether that impacted on my assessment of the Mother's capacity to care for the children in a more general way and, given that nobody has invited me to reconsider that issue, and nobody is suggesting that the children are at risk in the Mother's care for the periods of time as are proposed, in my view the matter should not go any further in terms of the result of these proceedings, although I do raise it as an issue that has caused me to have some concern about the Mother's continuing emotional and psychological presentation.
I do note that the safety feature of this will be that the Mother will have a neuropsychiatrist engaged and that she is prepared, and I should note that she was more than willing to agree to the sorts of authorities that I have discussed during the hearing, for her neuropsychiatrist to speak to the Father in the event that he or she had any concerns about the Mother's ongoing capacity to care for the children. I also note and I wish to record at this stage, because no doubt this is distressing for the Mother to hear, that my view of the evidence is that at times when the Mother has felt unable to care for the children she has always called for assistance and appropriately so.
I have also noted in these proceedings that, in my view, the one factor that is common between the parties is that they both dearly love their children and they both want what is best for them, and I well understand why these proceedings have required Court determination, because each of them simply have a different view as to what is in the ongoing best interests of the children into the future. It is for that reason that I continue to hold a view that it is appropriate that the children, whilst not living primarily with their Mother, should have ongoing significant time with her and why I ultimately form the view that a meaningful relationship with their Mother for these children involves them spending substantial and significant time with her.
In preferring the evidence of the Father in relation to this very serious allegation, I also take into account that Dr M described the Mother as making dramatic and sweeping statements and I saw an example of that myself with respect to the evidence where the Independent Children’s Lawyer was cross-examining the Mother in relation to an Intervention Order that she had taken out against the Father and which is due to be heard in the State Magistrates' Court this Friday. The Mother alleged that the Father during a changeover was yelling and screaming at the Mother. The Father said the event had not occurred.
When the Mother was cross-examined by the Independent Children’s Lawyer it became quite clear that, even on her own evidence, the Father was not screaming and that there had been a significant level of exaggeration in her application and I regard that matter as most serious because these are applications before a court. That, combined with many other matters, makes me concerned that the Mother is prone to exaggeration and to making dramatic statements generally and possibly to assist her in achieving her desired outcome in a case. What is notable is that at those changeovers the Father says that the changeovers took place relatively without incident.
I also note the voluminous number of text messages that have been exchanged between the parties. In the course of cross-examination whereby it was alleged by the Mother that the Father had called her various names. It transpired that, whilst there may have been an inference capable of being drawn from the written communication by emails and SMS message between the Mother and the Father, that particular statements had not been used, as alleged by the Mother.
There was significant cross-examination on the emails and on the SMS messages. In an overall sense I find in relation to that communication that at times it has been quite disrespectful by the Father towards the Mother and may not have been an appropriate use of correspondence between the two of them. If there were any statements of a coercive and controlling nature made by the Father they were at the lower end of the scale. In fact, I find that both of the parties engaged in fairly assertive communication between the two of them which may, in fact, be a reflection of the unpleasantness associated with the breakdown of the marriage.
I note also that the Mother acknowledges that there were, I think, three episodes of pushing and shoving and, again, in terms of physical interaction, it seems that it was situational and I assess at the lower end of the scale. In this case, I regard both parties as having elements of immaturity and that has probably contributed to their capacity to communicate, and get on with each other, and to work for the benefit of their children.
Moving forward, there were two other witnesses that gave evidence in the proceedings, one of whom was required for cross-examination. The first was a Ms M who was called by the Mother and who had been a nanny working for the parties in both Adelaide and for a short time in Melbourne. She gave evidence and the Father sought to cross-examine her in relation to the amount of assistance that the Mother had received in caring for the children during the marriage.
What was abundantly clear from the cross-examination by the Father and by the Independent Children’s Lawyer was that that the Mother had had some significant assistance during the course of her caring for the children, but it was mostly at times when she was employed or when she was too ill to care for the children. It was not on a 24-hour basis, although at least from the tenor of the evidence of the Father I felt that he would have placed it at a higher level than I am prepared to find.
I find on this basis that the parties had had significant assistance in the care of the children by third parties during the course of the marriage, and to some extent afterwards when the Mother had some assistance at the (omitted) property from an au pair. However, I do not regard that assistance as having usurped either of their roles as carers for the children and, in my view, the Father has sought to minimise the amount of caregiving that the Mother did for the children during that period.
The second witness was called by the Independent Children’s Lawyer and was not required for cross-examination, and that is a Ms S. Ms S is a psychologist working at the (omitted) Community Health Service and she had received a referral in relation to Y and had six sessions with Y at the time her affidavit was sworn in January 2015.
Her affidavit annexes a report and the Mother, quite appropriately, indicated that the report relates to Y but that is essentially because it was Y who had the referral and that there were some issues also with X, but he had not received a referral to a psychologist.
The report says that Y was referred for psychological therapy in October 2014 due to symptoms of "separation anxiety, aggressive play with his older brother, and defiant behaviour". The psychologist notes the separation as follows:
The presenting difficulties were reported by Ms Salt, who attended a parent interview to provide further details of her current concerns. Ms Salt reported that since the care arrangement changed to 50/50 care (in May 2014), Y’s tantrums have been longer and more aggressive, he bites and hits X and he is “very clingy” towards her. Some of the “clingy” behaviours Ms Salt reported include crying/upset when she walks out of a room, following her and holding on tightly to her when she walks around the home, and needing to sit on her lap and/or be in physical contact with her at most time (including when she needs to use the toilet). Ms Salt also reported that Y gets distressed if she does not co-sleep with her arm around him, and that he cries and refuses to let her go at day care and drop offs.
The Father also attended a parent interview and reported that when Y was in his care he had not noticed any of the behaviour that were of concern. It should be noted that the writer, after the six sessions, had not observed distress at separation or observed any aggressive play between Y and X, and similarly reported that the maternal child health nurse had not observed any clinging behaviour from Y at clinical appointments. Ms S reports that Y’s day care carer reported that she had observed Y becoming upset when separating from the Mother at drop offs but he had settled quite quickly.
The treatment to date had included feedback to the Mother on the writer's observation and for an exploration of what might be happening differently at home for “Ms Salt” that could influence the presenting difficulties she had reported. Additionally, behavioural strategies have been suggested to help reducing the distress at day care drop offs.
I note that the Mother, in terms of the outcome of these proceedings, had shown a willingness to examine her own emotions and behaviours when with Y and how they may in turn influence Y’s behaviour.
The report the children’s behaviour is of concern because it sits at odds somewhat with the Report of Dr M when she made the observations during the co-joint interviews between the parties and the children.
During her observation of X and Y with the parents Dr M said, in her Report, that X and Y appeared to have formed a strong positive bond and relationship with both parents, interacting with them in a way that suggests that they see them both as safe, loving and caring figures in their lives.
At that interview process with Dr M the Mother had reported as feeling unwell. She reported that the Father was really good with the children, even though there was some unpredictable issues that took place on that day due to the Mother's illness. Dr M reported that the Father was very positive and appropriate in his interactions with the children generally, and he involved himself totally in their play and he showed them things and tried to teach them things whilst he comforted the children and tended to all of their needs.
In some mild criticism of the Father Dr M observed that she had gained the impression that he could be a bit indulgent or permissive when it came to X, often expecting Y to give things up in order to keep X happy. She observed that the children were very responsive to the Father and they were easily comforted by him when they were upset.
I should also note that:
The children were very happy to transition to their mother; and she was also positive and appropriate with them; and she was very age-appropriate in her talk, play, and interactions with them, and she knew what they liked and was able to keep their interest and get them quite excited about things easily. She also gave them lots of praise and encouragements, and she danced and played with them, and she was affectionate and caring with them…
She reports that they responded positively to her disciplinary technique and she reports as follows:
…ultimately, the mother was just much better at managing their behaviour and their sibling spats, and their tantrums, and difficult behaviours; and when she told them no they just accepted it, and they didn’t cry like they did when they were with the father. Ultimately, the children were very well behaved and well contained with her, and they were also comforted and easily contained with and around her.
Further, Dr M reports at paragraph 42 that she thought that:
…the fundamental issues in this matter are the mother's medical issues, and whether it is true that she is unavailable to the children generally and emotionally as a result, and/or that she relies so much on the father to help care for them, but on such an ad hoc basis as to effect his ability to work in the implications of both scenarios.
At paragraph 55 Dr M observed that it was possible that the mother was:
…extremely self-focused, and that she may possibly have some narcissistic traits, as there just seems to be this disconnectedness to everyone around her when she was unwell, including the children, and a neediness to be focused upon and cared for and looked after, and an air of self-absorption that was concerning in the way it was almost child-like…
Dr M also noted that the Father's presentation was somewhat concerning and it was like he could not stop talking because he just had so much to say, and I will pause here to observe that the lengthy affidavit filed by the Father was simply a stream of consciousness which causes me to have some concern about his capacity to focus appropriately.
When Dr M was cross-examined by each of the parties, no significant inroads into her observations were made. However, appropriately Counsel for the Independent Children’s Lawyer put the observations of Ms S to Dr M and Dr M's ultimate impression is that those issues may be symptomatic of the fact of attachment issues between the children and the Mother which are of concern and are of concern going into the future.
I want to make it very clear that the result in this case is not a punishment for the Mother for being sick but rather an assessment of who, moving into the future, is able to better care for the children on the primary basis. It may be that these orders seem like a harsh result for the Mother in that her illness is completely out of her hands and that may impact on her capacity as compared to the Father of caring for the children.
Ultimately, I accept the Independent Children’s Lawyer's submission that there are likely to be attachment issues between the Mother and the children and it is likely that these issues impact on how the children are reacting to the Mother and the difficulties that she is experiencing with them.
I will turn now to the legislative pathway which will assist me in the ultimate outcome of these proceedings. In doing so I hope that I do not repeat matters that I have set out earlier in these reasons but rather incorporate them as I am guided by the pathway.
Clearly, and obviously to the lawyers but for the benefits of the parties, the best interests of these children are the paramount consideration in the proceedings. In determining their best interests and there are two primary matters for consideration and several additional matters or considerations to be taken into account.
The primary considerations are set out in section 60CC(2) of the Act which are mindful of the objects of the Act set out in section 60B. I must consider the benefit to the children in having a meaningful relationship with both of their parents and the need to protect them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
These proceedings were issued following the legislative amendments which came into effect from 7 June 2012.
Before I turn to the impact of the primary considerations, I propose to go through the other additional considerations set out in section 60CC(3) of the Act, and I will have regard to these additional considerations in evaluating the primary considerations contained in section 60CC(2), namely, what benefit will flow to X and Y in having a meaningful relationship with their parents, but also to ensure they are protected from harm and exposure to abuse, neglect or family violence.
The children's views are clearly not relevant at their age and stage of life. I have examined the nature of their relationships with each of the parties, including the very detailed analysis undertaken by Dr M, and note the ultimate conclusion of Dr M that the Father in this case just presents as the more stable option for these children.
In my view each of the children's parents have taken the opportunity to participate in decisions in relation to the children and to communicate with the children to the extent that they have been able to, and there are no issues in my mind in that regard. If anything, it is the particular detailed and pedantic nature of each of the parties that may have caused some difficulties between them.
The extent to which each of the parents have fulfilled, or failed to fulfil, their obligations to maintain the children is a matter that is very much in issue in these proceedings and it is tied up with my ultimate assessment of the Mother as having been someone who from time to time has been exposed to significant stress and has coped fairly well with that stress.
For instance, I note the course of evidence which has had the Father - and this is one of my criticisms of him - attempt to have the Mother's Centrelink entitlements reviewed with Centrelink and she has been facing that, that there have been numerous assessments and re-assessments of child support where the Father has been attempting to have his periodic child support reduced and the Mother has had to deal with those issues. The Father has reduced his employment so he is now earning approximately $60,000 per year, so the financial stress and the financial support offered by the Father to the Mother has been depleted as a result.
I find that the Mother has appropriately financially provided for the children, and indeed has worked in - and I do not mean this disrespectfully at all - but worked in menial jobs in order to ensure that she has the appropriate level of support for the children. I also note her resilience with respect to the legal issues that she has been facing, including at the part where she has been facing these proceedings which are obviously so important to her.
In terms of my finding in relation to the Father, in my view he has placed the Mother under financial stress, and at times inappropriately so, and to that extent that counts to his detriment in the proceedings. In my view that behaviour, with respect to the Mother and the financial support provided to her, and also to the children and how he has dealt with that, does demonstrate some financially-controlling behaviour and I was concerned about it during the proceedings. However, it is not of such magnitude that it changes my ultimate view in relation to where the children should reside on a primary basis.
When I consider the likely effect of any changes in the children's circumstances, I am of the view that the change is necessary to provide the stability that Dr M promotes and opines for. There will be a change in that the children will be spending more time with their Father and a little less time with their Mother. However, the arrangements will be more stable in that there will not be so many changes for them from day to day and in my view that will be to their benefit. Indeed, both parties tacitly recognise that, because neither of them sought a continuation of the existing arrangements which has the children moving every day and which was of necessity a fairly imperfect result on an interim basis.
In terms of practical difficulty and expense associated with face-to-face time and communication with the children, I do not find that there are necessarily any real difficulties with respect to that.
The capacity of the parents to meet the children's needs I have dealt with in detail in these reasons. In the overall sense the Mother's physical capacity might just be good enough, but that is not the only consideration. My obligation is to decide what is in the best interests of these children and in my view the Father's capacity to care for them, supported as I am by Dr M and by the submissions of the Independent Children’s Lawyer, is superior and is likely to be in their best interests in the long term.
When I have regard to the children's maturity, sex, background and other characteristics, taking into account the children’s ages at this stage these issues are not of such significance and importance, but I note that both of the parents have a cultural background which will enhance the children's lives and that the children should be exposed to. Indeed, when considering whether or not there should be a trip to (country omitted) and presumably also to (country omitted) at some stage, although at this stage I am not convinced that it should occur, I certainly do not discount that as a possibility in the future for both of the parties when the issues for the children have settled down and they are that much older.

When I consider the attitude to the children and the responsibilities to parenthood demonstrated by each of the children's parents, I feel that I have dealt with that in earlier in these reasons and both parties have deficits in that regard, but both parties also have attributes in that regard and, as I was at pains to point out, in my view each of these parties have significant attributes to bring to their children's lives and to enhance their upbringing.
Family violence I have dealt with, and noting that the family violence allegations continue to endure and will endure at least insofar as there are court proceedings this week.
When I consider whether or not it would be preferable to make an order that will the least likely to lead to further proceedings with respect to X and Y, I fear that this will not be the last time that the parties will come to court and, given the way they present in Court, in my view their personalities are such that from time to time they are probably going to require further assistance by the Court when they cannot conciliate the disputes between them.
Having considered the additional considerations, I return to the primary considerations with the benefit of those issues and I find that it is in these children's interest to have a meaningful relationship with both of their parents and there is nothing, even in the complexity of this case, which in my view does not support that. The orders that I propose to make will ensure that the children have a meaningful relationship with the Mother, and I know meaningful is not defined in the Act the orders that I make easily satisfy in my view that requirement.
I have considered the issue as to whether or not the children need to be protected from physical or psychological harm. At the first instance there is nothing to suggest that either of these children will come to any direct physical harm from the parties. There was an inference from the Father that the Mother may not be able physically to cope with them and there was one instance of an episode where the children were running around the front yard at the (omitted) property. However, that factor does not significantly impact on my consideration.
The two issues that play on my mind here are the neglect issue in terms of whether the Mother can care for the children, and I have found that she is probably good enough. The family violence issue I have dealt with in detail and, although there are factors of family violence in this case, in my view on both sides, the significant factor being the incident that took place on 12 March I have found did not occur and in that regard I have considered section 60CC(2)(ii).
I turn now to parental responsibility. Section 61DA provides that when making a parenting order I must apply a presumption that it is in the best interests of Y and X for their parents to have equal shared parental responsibility for them. Parental responsibility in relation to children means all the duties and powers, responsibilities and authority which by law parents have in relationship to children and includes issues such as their education, their religious and cultural upbringing, their health, their names and changes to their living arrangements which would make it significantly more difficult for them to spend time with both of their parents.
This presumption does not provide a starting point about the amount of time or communication that children should spend with their parents. What has weighed on my mind in assessing the parental responsibility issues is that where two or more persons share parental responsibility equally or in relation to any major long-term issue under a parenting order they are required to make the decision jointly. The concept of shared parental responsibility carries with it the requirement to consult the other parent in relation to any decision that is to be made about that issue and make a genuine effort to come to a joint decision about that issue.
The net effect of these provisions is that it requires some consultation and some discussion between the parties regarding the issues that I have described, such as education, religious and cultural upbringing, although there is nothing of that character that has necessarily been referred to in this case, the children's health which has been a difficulty because the children have from time to time experienced ill health, and changes to their living arrangements.
Pursuant to section 61DA(2), the presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) [which is not relevant]; or
(b) family violence.
In this matter I have dealt with the family violence issue and arguably it could be argued that the Court reasonably believes that there is family violence, as I said. However, the issue that has weighed more heavily on my mind is whether or not in the circumstances of these parties' presentation whether they are, in fact, capable of engaging in joint discussion with respect to what is in the long term interests of their children Although I have doubt, I can see significant advantages to these boys in both of their parents being involved in major long-term issues and in my view it is not warranted to exclude one or other of the parents out in that regard and I do not propose to do so.
Having arrived at that position, I then went on and did consider at some stage during this case whether or not the parties could continue in an equal shared parenting regime with respect to time for X and Y as perhaps that might have been in their best interests. However, I note that Dr M discounted that as being in the best interests of the children and, indeed, during the course of the proceedings I formed the view independently of Dr M that there needs to be a primary home for these children but with them spending substantial and significant time with the other.
Then I turn to the other issues in the proceedings, turning quickly to the Mother's application to take the children overseas. As I said before, in my view it is too early and the children's attachment has not cemented or stabilised enough for that to occur at this stage.
I will make the order for dinner each Tuesday, as is recommended by the Independent Children’s Lawyer. I do not propose to make any holiday orders at the moment but rather have the arrangements carry through for all times. However, I would expect by the time Y reaches the age just prior to commencing school that some school holiday time would be appropriate, and if the parties cannot agree on that after counselling they should return to Court.
As I have said, in my view there should be joint parental responsibility, however, there should be one clinic and one paediatrician nominated for the parties to see with the usual requirement that they advise the other party of significant health issues and also allow the other party to liaise with medical practitioners.
In my view, and as is agreed by the Mother, the neuropsychiatric orders should be made for her neuropsychiatrist with the authorities that I spoke about during the course of the proceedings.

I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Judge Stewart

Associate:

Date: 23 June 2015

[2015] FCCA 1646

3 February 2015

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