Saxe and Mildmay

[2009] FMCAfam 492

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAXE & MILDMAY [2009] FMCAfam 492

FAMILY LAW – Parenting – consideration of shared care arrangements for an eight year old boy in the context of allegations of risk to the child arising from mental health issues concerning the father’s wife – consideration of attachment of child to father – consideration of wishes of the child.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346
McCall & Clark [2009] FamCAFC 92

Applicant: MR SAXE

Respondent: MS MILDMAY

File Number: SYC 4605 of 2007

Judgment of: Walker FM

Hearing dates: 11 & 12 May 2009

Date of Last Submission: 18 May 2009

Delivered at: Sydney

Delivered on: 29 July 2009

REPRESENTATION

Counsel for the Applicant: Mr Alexander

Counsel for the Respondent: Mr Dura

Solicitors for the Respondent: Michael Jokovic & Associates

The Independent Children’s Lawyer: Ms Shea

THE COURT ORDERS THAT:

1. That all previous parenting Orders in relation to the child, [X] born in 2001, be discharged. 

2. The mother and father shall have equal shared parental responsibility for [X]. 

3. [X] shall live with his mother apart from those times when he shall live with his father as set out in order 4 below.   

4. [X] is to live with his father as follows:

   (i)In a two week cycle (referred to as “the two week cycle”), in the first week from after school on Thursday until before school on Tuesday and in the second week from after school on Thursday until 8.00pm on the Thursday, with further time as provided in order 6.  Weekend time is to coincide as far as possible with the time the father spends with his daughters [Y] and [Z]. 

   (ii)For one half of all school holiday periods with such periods, so far as possible, to coincide with the time the father spends with his daughters, [Y] and [Z].  Unless otherwise agreed between the parties such school holiday time shall be the first half of all school holiday periods in years ending in odd numbers and for the second half of all school holiday periods in years ending in even numbers. 

5. Arrangements for special days shall be as follows:

   (i)The father is to spend time with [X] from 2.30pm on Christmas Eve until 2.30pm on Christmas Day in years ending with odd numbers and from 2.30pm on Christmas Day until 2.30pm on 27 December in years ending with even numbers. 

   (ii)The parent with whom [X] is not living on his birthday shall spend at least three hours with him on that day. 

   (iii)The mother shall spend from 9.00am until 6.00pm with [X] on Mother’s Day if he is not otherwise in her care. 

   (iv)The father shall spend from 9.00am until 6.00pm on Father’s Day with [X] if he is not otherwise in his care. 

   (v)The parties shall spend at least four hours with [X] on their respective birthdays should [X] be living with the other parent at that time. 

6. (i)The father is to use his best endeavours to ensure that his wife, Ms S attends review appointments with a mental health professional at least once every 6 weeks, unless otherwise recommended by a mental health professional. 

   (ii)The father is to use his best endeavours to ensure that the Independent Children’s Lawyer is provided with an authorisation by Ms S enabling the Independent Children’s Lawyer to contact the mental health professional consulted by Ms S in regards to her attendance at appointments. 

   (iii)The father is to provide the Independent Children’s Lawyer and the mother with written confirmation that Ms S has attended review appointments referred to in Order 6(i) above within 7 days of such attendance at each appointment. 

   (iv)In the two week cycle immediately following the expiry of 12 months after the date of the making of these orders, the father’s time with [X] is to be increased to include from after school Thursday to before school Friday in the second week of the cycle, provided that the father has provided the written confirmation required by order 6(iii) to the Independent Children’s Lawyer and the mother. 

7. The father is not to leave [X] in the sole care of Ms S. 

8. Each parent is to notify the other parent immediately in the event that he or she is unable to care for [X] at any time and the other parent shall be the first option as alternative carer for [X]. 

9. Each parent shall ensure that [X] is at liberty to communicate by telephone with the other parent at any reasonable time while in that parent’s care. 

10. Each parent shall notify the other parent immediately in the event of any serious illness or injury affecting [X] while he is in that parent’s care. 

11. All changeovers on school days are to take place at [X]’s school.  When changeover occurs on a non school day, the mother shall deliver [X] to the father’s home at the commencement of his time with him and the father shall return [X] to the mother’s home at the conclusion of such time, unless otherwise agreed between the parties. 

12. Neither party is to change [X]’s school enrolment without the agreement of the other parent. 

13. Each parent shall notify and keep the other informed of all extracurricular activities involving [X]. 

14. Each parent shall keep the other informed of their landline and mobile telephone numbers and shall notify the other parent within 24 hours of any change. 

15. Each parent shall keep the other informed of their residential address and shall notify the other parent at least 7 days prior to any change. 

16. Each parent is restrained from denigrating the other parent or any member of the other parent’s family within [X]’s hearing. 

17. The father is restrained from consuming alcohol whilst [X] is in his care. 

18. The mother is restrained from allowing [X] to have any contact with Mr H. 

19. The father is to take [X] to a consultation with a child and family professional to be recommended to him by the Independent Children’s Lawyer for the purpose of that professional assisting [X] with an understanding of Ms S’s illness. 

20. The order for the appointment of the Independent Children’s Lawyer is extended for a period of 12 months from the date of these Orders so that the Independent Children’s Lawyer is able to receive the confirmation referred to in order 6(iii) above and following receipt of such confirmation liaise with each of the parents to confirm that the additional time provided for in Order 6(iv) above has commenced.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 4605 of 2007

MR SAXE

Applicant

And

MS MILDMAY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting matter in which the father seeks Orders that the parties have equal shared parental responsibility for their eight year old son and that he lives with each of them in a week about arrangement. 

Background

1. The father was born in 1960.  The mother was born in the United States of America in 1968. 

2. The parties commenced cohabitation in about March 2000. 

3. Their only child [X] was born in 2001. 

4. The father was previously married and his children of that marriage are [Y] born in 1997 and [Z] born in 1998. 

5. The mother has two sons from two previous relationships, [V] born in 1994 and [W] born in 1996.  The fathers of each of these boys live in the United States.

6. The mother says that she commenced work two years after [X]’s birth and that she then worked for a period of 12 months and that during this time [X] was cared for by the father who was not working at the time.

7. The father says that he was retrenched in June 2003 and that he decided to spend time at home looking after his son.  He returned to work in September 2006 as a [occupation omitted] but was forced to give up that work because of a recurring lower back workplace injury. 

8. The parties disagree about the date of separation.  The mother says that in about April of 2005 she left the home with [X] and the boys and lived in a refuge for five weeks.  She says that she then obtained rental accommodation and the relationship between the parties resumed.  While she and the father lived in different accommodation she says they stayed together in one place for four nights each week, that they had the keys to each other’s homes and that separation did not occur until January 2007.[1]  The father says that separation took place when the mother left the home in April 2005. 

   [1] Mother’s affidavit sworn 24 April 2009

9. In about mid 2005 the mother began to share a residence with Mr H.  In September 2008 she told an officer of the Department of Community Services (DoCS) that after “her divorce” she had nowhere to go and she heard that Mr H had nowhere to stay as well.  They decided to live in the same house. 

10. The father says that the mother did not spend any nights at his home after May 2005 and that nearly all contact he had with her, only involved [X], “was at her new home with [Mr H].”  He says that he never had the keys to the mother’s house, that she refused to return his house keys and that he changed the locks. 

11. The family reporter, from her conversations with the parties, deduced that “the parents had an altercation in 2005 when the father ejected the mother from his home. Following this, it appears the parents maintained contact although disagree as to whether this was to maintain their relationship or only for the purposes of spending time with [X].”[2] 

    [2] Family Report by Ms Julia Schwarz dated 16 December 2008 at paragraph 8. 

12. On the basis of this inconsistent evidence it is difficult for the Court to make a finding about the date of separation.  The mother’s reference to her “divorce”, in the context of her deciding to share a house with

    
    

    Mr H appears to lend support to the father’s view of the date of separation. 

13. In January 2007 the father was spending time with [X] during the Christmas school holidays.  The mother said in cross-examination that on 19 January 2007 the father told her on the phone that he had commenced a relationship with Ms S.  A dispute arose between the parties in relation to the father’s time with [X]. 

14. The mother says she initially became aware that Ms S had mental health issues in discussions with the father around mid 2007. 

15. The father married his present wife Ms S, (now known as Ms S), in September 2007.  She has children [A], [B] & [C] who live with their father and spend time with her on alternate weekends and during the holidays. She says the children have lived with their father since September 2006 because of her health issues which required hospitalisation. 

16. The mother is not in paid employment at present. 

17. The father says that after a significant period of not being employed, he worked as a [omitted] in 2007 and is presently working as a [omitted].  

18. On 25 September 2007 the father filed an Application seeking final parenting orders.  

19. The current Orders are those made on 30 November 2007 (as varied on 30 June 2009).  They initially provided that [X] live with his mother and spend time with his father on each alternate weekend from 9.00am to 4.30pm on each Saturday and Sunday, each Tuesday and Wednesday from after school, until 6.30pm, and for half the December and January 2007/2008 school holidays from 9.00am to 7.00pm each day. The Orders provide that [X] is not to spend time with the father’s wife without the supervision of the father.  On 13 June 2009 the Orders were varied to provide that [X] also spend time with his father from after school to 7.00pm on the Friday of the weekend of the Saturday and Sunday time and on the Saturday from 9.00am to 7.00pm.

20. The father says in his affidavit sworn 4 May 2007 that since those Orders were made he has not had [X] overnight except for 2 occasions when his wife was not present.  One of these was 16 April 2009 when he went overnight on a trip to [H] with his daughters. 

Evidence

1. The mother relied on her affidavits sworn 4 February 2008 and 1 April 2009.  The father relied on his affidavits sworn 16 October 2007,

   
   17 October 2007

   and 4 May 2009 as well as an affidavit by Ms S sworn 4 May 2009. 

2. The Court was assisted in this matter by the Family Report of Julia Schwarz.  The evidence indicates that neither party at the interviews with Ms Schwarz held on 26 September 2008 was completely open with her about some significant matters.  While the family reporter was aware of the wife’s history of mental health issues, her evidence in cross-examination was that she did not recall that she had been informed of the wife’s hospital admissions in 2008 although she had only been discharged from her most recent admission in August 2008.  The father’s evidence was that he thought he had mentioned this to the family reporter.  The family reporter was not adamant about this, simply that she did not recall. 

3. The mother made no disclosures of the fact that Mr H was facing criminal charges including the alleged sexual abuse of a child between 14 and 16 years.  The evidence before the Court indicates that the police arrested Mr H at the house he shared with the mother on

   
   8 September 2008

   .  The family reporter was of the view that Mr H “sounded proprietary” when she telephoned to make an appointment with the mother.  She asked the mother about her relationship with him and records in the report that the mother insisted that he was a friend, that she was not in a relationship with him, and that he had immediate plans to move to other accommodation closer to his work. In responding in this way the mother failed to disclose that he had been charged with serious offences, that DoCS had been in communication with her about him and that she had asked him to move out. This raises issues about the mother’s credit. 

4. At the hearing the family reporter indicated that she had read updated material in the matter.  She had an opportunity to read a report by Dr T, Ms S’s treating psychiatrist, dated 7 May 2009.  The family reporter was an impressive witness.  Her curriculum vitae includes work as a psychologist with Montrose Child Protection Unit, DoCS, with the Scarba Family Centre at the Benevolent Society, NSW, with the child and family team at Waverley Community Health Centre and more recently as senior psychologist, with DoCS.  She was well qualified to give an opinion about the risk issues raised in this matter. 

The proposals of the parties

1. The father in his Amended Application filed 16 October 2007 sought orders for equal shared parental responsibility and shared care of [X] on the basis of him spending a week with each parent.  He also sought time with [X] during half of the school holidays and special days.  The mother filed a Response on 6 May 2009 in which she sought orders that [X] live with her and spend time with his father during school term from after school each Tuesday and Wednesday to 7.30pm and each alternate weekend from 9.00am until 8.00pm each Saturday and Sunday.  She sought orders that the father’s time with [X] be from 9.00am until 8.00pm each day during one half of the school holidays and coincide with that period of the holiday when the father was also spending time with his daughters.  The proposed orders also provided for two block periods of one week including overnights during the year, also to coincide with the time that the father is to spend with his daughters.  There was time provided for on special days. 

2. At the conclusion of the hearing the Independent Children’s Lawyer proposed orders which provided that each of the parents have equal shared parental responsibility for [X], that [X] live with his mother and spend time with his father during school terms, each Tuesday and Wednesday from after school until 8.00pm and each alternate weekend from after school on Friday until 8.00pm on Sunday with such weekends to coincide with those where the father has the care of his other children.  It was proposed that [X] stay with his father for one half of each of the short school holidays and for two non consecutive blocks of up to 7 days during the Christmas school holidays which were to coincide with the father’s time with his other children.  There was also provision for special days. The Independent Children’s Lawyer also proposed provisions for information sharing between the parents and that an undertaking be given by the father’s wife that she will attend upon her treating psychiatrist and take medication as prescribed. 

3. In submissions the legal representative for the mother indicated that she accepted the Orders sought by the Independent Children’s Lawyer with two modifications, the first one was that the father inform the mother of matters relating to the treatment of his wife including if she failed to attend upon her treating psychiatrist or failed to take medication as prescribed, and that he notify the mother as soon as practicable in the event that his daughters would not be spending their usual time with him. 

The issues

1. The two main issues are:

   ·[X]’s attachment to his father and the significance of this in terms of the amount of time he should spend with his father. 

   ·Potential risks arising for [X] as a result of Ms S’s history of mental illness should [X] stay for lengthy periods of time in the father’s home. 

The relevant law

1. Section 60CA provides that the court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order.

2. Section 60CC sets out the matters which the court must take into account in determining what is in a child’s best interests.

Primary Considerations

Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child's parents

1. There is an issue in this matter about the amount of time [X] has spent with each of his parents.  The father says that while he was not working between June 2003 and September 2004 he spent a lot of time looking after [X].  He goes so far as to say that from June 2005 until January 2007 a pattern developed whereby [X] spent “the bulk” of his time with him.  He says that he was [X]’s primary caregiver and that they are still very close. 

2. The father says that he and the mother set up a “working agreement” that they would share school holidays based on the arrangements the father had to spend time with his daughters and that accordingly [X] would be with him in the first half of the school holidays in odd years and the second half of the holidays in even years.  This, he says, is how [X] came to be with him in the last three weeks of January 2007 when a dispute arose between the parties. 

3. The mother says that except for a period of twelve months some two years after [X]’s birth, she was primarily responsible for [X]’s care and that [X] rarely spent more than one or two nights away from her.  Nevertheless the mother acknowledged to the family reporter that [X] had lived with each parent in a shared care arrangement and that he had a close relationship with his father.  The family reporter concluded that the parents had a flexible arrangement regarding [X]’s care and that he spent significant amounts of time with each parent.  She noted that although the parents disagreed about the proportion of time [X] spent with each, they agreed that he spent at least half the time with the father and that this continued until January 2007 when the parents argued about the contact schedule.  The family reporter’s observation of [X]’s attachment to his father is consistent with him having spent a lot of time with him.  The Court has no hesitation in finding that this is the case.  What the mother says in her affidavit and what she told the family reporter about this is inconsistent.  There is little doubt that as acknowledged by the mother to the family reporter [X] lived at least in a shared care arrangement between mid 2005 and January 2007 and accordingly the Court finds that there was a shared care arrangement during this period. 

1. The mother says that during 7 January 2007 when [X] was spending time with the father she became distressed when she could not contact him by telephone.  The father says that he collected [X] for his period of half school holidays time when his sisters would also be there.  It was expected that [X] would be returned on [date omitted] for the birthday of his brother, [V].  The father acknowledges that [X] did not speak to his mother for quite some time during the holidays.  According to him this is not unusual.  The father says the mother had his mobile phone number and that he did not receive calls from her during the period.  He says that contact was made by a friend of the mother’s, a night or two before [V]’s birthday and that the father confirmed that he would be bringing [X] around for the party. 

2. The father says that when he dropped [X] off he and the mother agreed that he would pick [X] up in two days time.  He says that he told the mother that his present wife, Ms S, had been present during the holidays.  The mother says that she did not know that the father was in a new relationship and that she became upset by this.  According to the father when he phoned to confirm the times he would collect [X] again the mother said that he was “not going to see [X] again” and that if he tried to contact him she would call the police.  The police later came to his home.  

3. It appears then that while subsequently difficulties in arrangements about [X]’s time with his father may have been precipitated by the mother having some difficulty contacting [X] while he was away, the disclosure that the father was in a new relationship was also a  significant reason for these difficulties. 

4. The police spoke to each of the parents.  The mother told the police that the father had said he would take [X] from school if she did not agree to [X] spending time with him and that as a result she kept [X] home.  She also told the police about firearms which the father had in his possession.  The police spoke to the father whom they said offered to surrender his rifles which the police took.  The police recorded that they could be returned to him after 28 days.  Police records show the police reporting that they held no fears about the safety of the mother or the child and that accordingly they would not be applying for an Apprehended Violence Order.  The mother’s evidence is that the issue of an Apprehended Violence Order was raised because the father was coming to her house being verbally abusive, demanding to be let in and demanding to see [X].  She said that on one occasion [X] was playing in the backyard and the father started yelling from the side for [X] to come out.  She asserted that this frightened [X].  Given the undisputed evidence about [X]’s close relationship with his father the Court finds it difficult to accept that [X] was frightened as his mother asserts.  The Court finds that the mother’s expressed concerns at this time were exaggerated. 

5. The mother says that subsequently as a result of negotiations the father saw [X] on a regular basis.  Annexed to the mother’s affidavit sworn

   
   4 February 2008

   is a letter from the father’s solicitors that indicated that while agreement about the father’s time with [X] had been reached up until the Easter school holidays there had been no agreement beyond that date. 

6. The father’s time with [X] was then still a live issue when the mother became aware of Ms S’s mental health issues.  The mother says that she initially became aware of these mental health issues in discussions with the father in about mid 2007.  She says she recalls [X] saying to her words to the effect “dad told me not to tell you about [C].”  She then had discussions with the father.  She considered that he was reluctant to discuss the matter and that she contacted the father’s solicitor.  She then spoke to the father who said to her “I don’t know what’s going on, Ms S’s in the hospital I don’t know exactly what’s wrong.”  Subsequently, in September 2007 she was forwarded a medical report by Dr F which is annexed to her affidavit.  She received correspondence from solicitors acting for the father on 19 October 2007 in which it was confirmed that the wife had attempted self harm.  Following this she requested a medical report detailing the degree and severity of the wife’s illness.  She received a copy of a report from

   
   

   Dr G dated 22 April 2008 in June 2008.  She says that this report did not lessen the concerns which she had in that it indicated that the wife did not have a “good grasp of the nature and severity of her illness and was reluctant to obtain appropriate treatment.”  She says that the Family Report confirmed these concerns and that the father has “left her in the dark” regarding the wife’s illness. 

7. When the mother was interviewed for the Family Report she described a difficult relationship with the father but said her only concern was his wife’s mental health.  She said that [X] had a close relationship with his father and acknowledged that he missed his father but felt the amount of regular contact and telephone calls mitigated this. 

8. As mentioned, the family reporter noted that the parents when they saw her did not dispute the fact that [X] has spent considerable time in the father’s care and has a strong attachment to him.  She said that the information gathered for the report “suggests [X]’s relationship with Mr Saxe may be his primary attachment.”[3]

   [3] Family Report by Ms Julia Schwarz dated 16 December 2008 at paragraph 44.

9. The family reporter’s opinion was that the present arrangements for [X] to spend time with his father gives him a message about there being a limit on his relationship with his father which she thought might be hard for him to accept given his level of attachment to his father.  She thought that it would be a difficult arrangement for [X] to sustain and that his ability to cope with the current arrangement would be affected by his impression of the previous arrangements.  In her view there were emotional risks inherent in [X]’s attachment needs to his father not being met. In cross-examination she described [X] presenting as significantly distressed by the reduction of the time he was spending with his father.  The Court accepts this evidence of the family reporter. 

10. The family reporter’s opinion was that [X] also had a good relationship with his mother. He was observed as being responsive to her and seeking and receiving comfort from her.  There was, however, some reservation to this assessment in that the family reporter also had the impression of the mother being somewhat detached in her manner towards her relationships, including that with [X].  She concluded that while the relationship between [X] and his mother appears to be reasonable and involving some warmth “it may not be sufficient to sustain [X] from the anxiety and distress he appears to be experiencing from the separation from Mr Saxe.”  Her opinion was that “in terms of [X]’s attachment needs, it appears that he would benefit from spending increased time with Mr Saxe, including periods overnight.  Mr Saxe’s proposal for shared care is therefore considered to have merit if the safety issues are addressed.”[4]

    [4] Family Report by Ms Julia Schwarz dated 16 December 2008 at paragraph 46.

11. The Full Court in McCall & Clark [2009] FamCAFC 92 has considered the interpretations which potentially could be given to section 60CC(2)(a) and has said that the preferred interpretation is to take a “prospective” approach which involves the Court considering and weighing the evidence at the date of the hearing and determining how, if it is in the child’s best interests, Orders can be framed to ensure that the particular child has a meaningful relationship with both parents. 

12. The Court finds that [X] would benefit from a meaningful relationship with his father and that he needs more time with his father to achieve this.  At this time the current arrangements do not support that.  At the hearing the mother supported the proposal of the Independent Children’s Lawyer to increase [X]’s time with his father.  That proposal provided for less time than that sought by the father and less time than recommended by the family reporter subject to addressing safety issues.  The particular issue in this matter then is to balance [X]’s need for a meaningful relationship with his father with a consideration of the safety issues raised by the mother. 

13. Although some issues were raised in relation to the mother’s parenting capacity which will be discussed later, it is not suggested that [X] would not benefit from a meaningful relationship with his mother and the Court finds that [X] would also benefit from a meaningful relationship with his mother. 

Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. As noted the opinion of the family reporter about the merit of the father’s proposal for shared care was qualified by the need to address safety issues.  The safety issues raised in this case particularly relate to possible impacts on [X] arising from circumstances related to the mental health of the father’s wife.  This case was conducted very much on the basis of her health issues.  The proposals for [X]’s time with his father by both the Independent Children’s Lawyer and the mother reflected concerns about issues relating to Ms S’s health.  The evidence about her health is set out below.  

2. Mr Saxe and Ms S were each cross-examined about Ms S’s medical history and hospital admissions.  Medical records about these hospital admissions were in evidence in the matter.  Those documents indicate that her health problems began in 1994 when she was diagnosed with post natal depression.  In 2001 she was admitted for a psychotic illness under Dr R who diagnosed Schizoaffective disorder.  In 2005 she was admitted with depression and in 2006 there is a record of an admission to hospital with a manic relapse.  Dr S, who was her treating doctor at the time, diagnosed bipolar disorder.  The records then indicate that

   
   

   Ms S was diagnosed instead with an adjustment disorder, that her medication was changed and that this produced a manic relapse in 2007 when she was admitted to [C] Hospital in May, transferred to [N] Hospital and again admitted to [C] in June 2007.  She was discharged on a Community Treatment Order (CTO). 

3. On 22 July 2007 police at [M] police station called an ambulance and Ms S spent a short time in [S] Hospital.  The records indicate that she had an overnight admission in October 2007 when she took an overdose of medication. 

4. Medical records indicate a series of admissions in 2008 - to [N] Clinic from 17 June 2008 until 9 July 2008, to [W] Hospital on 15 July 2008 with a transfer to [C] and a further admission to [N] Clinic from

   
   7 August 2008

   until 28 August 2008.  

5. It appears that Ms S’s initial three week admission to [N] Clinic in 2008 was for inpatient management of a manic episode and then a week after discharge she presented to [W] Hospital for treatment of bronchitis. She was subsequently scheduled under the Mental Health Act for bipolar affective disorder with manic episodes and psychotic features. On presentation at [W] she was found to be grandiose, agitated, and irritable with persecutory delusions and thought disorders.  She responded to medication.  Following management at [N] it was reported that she had responded to treatment partially in that her manic symptoms settled however she developed depressive symptoms and lability of mood which have partly responded to treatment.  She was discharged with follow up with Dr T.  It is agreed that the wife has had no further admissions since this date. 

6. The father’s recollection is that early in their relationship his wife had told him that she was suffering depression and that she had said to him that she had been admitted to hospital for depression.  He became aware of her mental illness during their relationship for the first time when he took her to [C] hospital and she was admitted in 2007.  He said that at the time she had only been having about two hours sleep during the previous four days and had been sitting up staring.  This was affecting his sleep.  He did not know what to do because he had not come across such behaviour before. He said he was getting nervous about it and so he took her to hospital.  The father was asked about the hospital notes which indicated that after his wife arrived at the hospital and was admitted she was placed into seclusion because she was extremely hostile, resistant and combative.  The father said that she was not like that when she got to the hospital and that wife does not like being in hospital, particularly [C] Hospital.

7. The father recalled that Ms S was admitted on a second occasion to [C] Hospital on 20 June 2007.  He agreed that she was again placed in seclusion.  The hospital notes record that she was “out of control.”  The father said that was not how he recalled her behaving at home but again she did not want to be in the hospital and seemed “very stubborn” about that.  The father agreed that he had called the hospital saying he was finding it hard to cope with her increasingly bizarre behaviour.  He agreed that he had described this behaviour as walking up and down corridors, talking to the walls and talking about the FBI being after her, saying that her sister was in the FBI, talking about being an opera singer and again not sleeping for several nights and generally being unresponsive.  He said that he would talk to her but that she did not hear and that he would have to stand in front of her in an effort to get her attention.  He agreed that he recalled saying that he was unable to sleep because of the need to supervise her and said this was because he did not want her to walk around the streets or go out for a drive. 

8. The father said that there had been an occasion when his wife had tried to get up at midnight and get the children out of bed and into a car.  They told her to “go back to bed mum.”  This was in 2007.  He agreed that she was subsequently admitted to hospital.  He phoned the hospital and told them that she was irritable and argumentative.  He said she was arguing with him because she wanted to go out and did not want to go to hospital. 

9. The father said that [X] was at the home on one occasion when the wife required admission.  He put [X] in a bedroom watching television and medical staff came and collected his wife.  [X] knew that she was taken to the hospital.  The father spoke to [X] and told him that sometimes Ms S does strange things like talking to the wall, walking around and being non-responsive.  He told [X] that they would see her again when she was well.  His evidence was that he did not think that this incident had affected [X]. 

10. The father agrees that Ms S was admitted into hospital later that year on 17 October 2007 after taking sleeping pills.  Although he says he was told by the hospital that she did not take as many pills as they had thought. 

11. Ms S next had the series of admissions to hospital in mid 2008 set out previously.  The father says he thought he told the family reporter about these 2008 admissions.  At that time he had observed his wife appeared distracted, walking around all the time and talking to the walls.  He said that she did not display agitation to him but rather that she appeared tired and irritable.  He said that she was having mood swings and delusions in that she thought she was an opera singer.  He said that she was thought disordered and confused and thought she was being persecuted by the doctors.  He agreed that he had called the hospital saying that she was having spasms.  He said he called the ambulance. 

12. On the 17 June 2008 admission the wife had asked to go to hospital and the father then took her.  On admission she was described as presenting in a hypomanic episode with pressured speech and a grandiose manner.  The father agreed that he had not picked up her symptoms.  He thought that they were the symptoms that a doctor was more likely to pick up.  After her discharge from [N] Clinic the wife was admitted to [W] Hospital.  She presented with symptoms of bronchitis.  The discharge summary reported that one week after her previous discharge she had become noncompliant with her medication.  The father agreed in cross-examination that he had not seen it.  At hospital she was found to be grandiose, agitated and irritable and with persecutory delusions.  The father said that she had not been like that during the week but was on the night of her hospitalisation. 

13. The father was asked about his conversations with a social work student.  Although he recalled the conversation he was not certain which hospital his wife was in at the time.  He agreed that he did say that she was taking him to “hell and back.”  His said this reflected his frustration.  He also agreed that he made comments about the impact of his wife’s mental state on the Court proceedings relating to his time with [X].  

14. The father agreed that he had not wanted his wife to be subject to a CTO. He said that after Dr T explained the reasons and that the drugs that his wife would be put on would address a possible relapse if she was not compliant, he agreed.  The father also agrees that the 2008 admissions were brought on by the mother’s non compliance. In the event there was no CTO order made at the time of the wife’s discharge from [N] in August 2008. 

15. When asked if he thought his wife was compliant now the father said that she had been working, sleeping well and doing the normal things with him and the children.  He said that from her discharge in August 2008 to the present was the longest time his wife had been out of hospital since he had known her.  He agreed that there had been a similar period between October 2007 and June 2008 but the difference was that then she had been on a CTO with someone coming every two weeks to give her an injection. 

16. The father was asked how he knew if his wife took her medication.  He said he did not see her take her medication on every occasion but mostly he did.  He asked her every day if she had taken her medication and he checks how many tablets are left.  In his view her insight has improved since the consultations with Dr T in October and November 2008.  He agreed that she had almost no insight before that. 

17. When asked if it was reasonable for the mother to have concerns when [X] was in his care prior to October/November 2008.  The father’s response was yes and no.  He said this because he regards [X] as being in his care, that he is the one looking after [X] and that if he perceives a problem he will act.  It was suggested to the father that he did not believe that anything in his wife’s behaviour was likely to have an adverse impact on [X]. In response he said “right”. The father’s evidence is that he put [X] in a room during an episode in 2007 when he called the hospital and subsequently gave an explanation to [X].  Obviously he acted because he was concerned about some impact on [X]. 

18. The father says that his wife does not like being treated by the doctors at [C].  The documents indicate that it was during two admissions to [C] in 2007 that she was placed in seclusion and that this was because on one occasion the hospital staff found her to be hostile, aggressive and “out of control.”  The father says that he has not seen his wife being “aggressive”.  Certainly the medical documents tendered in evidence while they contain many reports of what he has said to medical staff about the wife’s presentation do not appear to include in them him describing her as aggressive. The Court accepts the husband’s evidence that he has not observed his wife at home as “aggressive” and “out of control.” 

19. The father agreed that since his wife’s most recent discharge from [N] in August 2008 she had visited Dr T on only three or four occasions, in October 2008, November 2008 and in May 2009.  There is some uncertainty in Dr T’s records about a visit in September 2008.  The father gave as reasons the expense, saying that he and his wife were financially strapped.  He also acknowledged that he had not seen the need, that in the last six months his wife had been going to work and enjoying her time with the family.  He said that he spoke with Dr T during the May 2009 consultation and agreed that Dr T had said she needed to be reviewed.  The father said he would make sure that she went.  He agreed that his wife had a non compliant history and was not accepting of her illness.  However, the father says that the wife is more compliant with her medication now and that he thinks Dr T is the reason for this.  He says that he accepts that part of his wife’s treatment is that she needs to be treated when she is well to avoid a relapse and that he has spoken to Dr T about this. 

1. The father says that he is learning more about his wife’s illness by observation and reading about the illness on the internet.  He agreed that in 2007 and into 2008 his understanding was not so good.  He said that his conversations with Dr T had helped him understand.  He saw Dr T in the hospital in July 2008 and spoke to him in May 2009.  The evidence is that the father knew little about the wife’s illness early in the relationship.  The Court accepts his evidence that his understanding of it has increased over time.  However the Court is concerned that he did not press his wife to have her condition reviewed after the November 208 consultation.

2. The father acknowledged that he was not open with the mother about his wife’s admissions.  He said that his concern was that she would overreact and not let [X] stay with him.  The father should have been open with the mother.  There is evidence that neither of the parties was open with the other about significant matters in the context of the continuing litigation. 

3. The father was asked how in the context of his proposal for week about time he would manage the situation if his wife became unwell.  He said that he thought he would phone the mother and ask if [X] could come over and that he could do this because his wife did not have a sudden onset of a relapse.  He agreed that he had not made such a request of the mother before.  The Court accepts that this would have been difficult in the context of the litigation between the parties.  The father’s evidence is that if the mother was not available for some reason he would ring the parents of one of [X]’s school friends.  The father said he would agree with a proposal that [X] would not be left alone with his wife for more than half an hour. 

4. The report of Dr T, the wife’s treating psychiatrist, dated 7 May 2009 was tendered in evidence in the matter.  Dr T was also cross-examined.  In submissions the mother’s counsel questioned the characterisation of Dr T as the mothers treating psychiatrist on the basis that he had not seen the mother for 6 months prior to the May appointment. He submitted that the Court should not place great weight on Dr T’s evidence about the wife’s insight and his optimistic prognosis given that the last “real appointment had been in November.”  There is an obvious concern about the delay in the further appointment with Dr T.  It is hard to doubt though that while the May appointment was primarily made for the purpose of the report that it was nevertheless a “real” appointment.  This is evidenced by the fact that on the date of the consultation Dr T organised blood tests to determine the wife’s compliance with her medication. 

5. Dr F, Psychiatry Register, [C] Hospital, had prepared a brief report dated 20 September 2007 which was forwarded to the mother.  It said the wife was discharged from [C] hospital and had a diagnosis of bipolar disorder and at the time was receiving treatment and attending outpatients appointments.  It said that there was no concern about the risk of harm to others. 

6. A substantial report was prepared by Dr G, Senior Career Medical Officer, currently at [W] Hospital, dated 22 April 2008.  Dr G’s report noted that he had seen the wife on five occasions and that she had had about five psychiatric admissions.  At the time the most recent admission had been in August 2007 when the wife had been admitted as a patient and discharged after four weeks on a Community Treatment Order.  His report said that her illness was most likely to be Bipolar Affective Disorder and that she had not remained compliant with her medication.  While her manic symptoms had resolved she had remained hostile to being given a diagnosis of mental illness and hostile to being prescribed medication.  The report stated that in the weeks following discharge she took an overdose of medication which resulted in an overnight admission to a general hospital.  It stated that there appeared to have been no evidence of self harm prior to that and there was a small risk that she could attempt self harm in the future. 

7. In the report Dr G expressed the opinion that Ms S posed no obvious risk of harm to others and that with appropriate treatment she should make a significant if not complete recovery from her illness.  The problem identified at the time was that she was refusing to comply with appropriate medical treatment.  Dr G believed that at that time she should not be in a position to be solely responsible for [X].  The report noted that there would be a lag of at least a week before there was a recurrence of symptoms of bipolar disorder in the event that the medication was stopped.  It said that provided her husband monitored the medication then he could notify the medical team early should there be a recurrence of symptoms and that this would allow intervention to be made in a timely fashion to organise Ms S to be away from the house during access if she did show evidence of evolving symptoms. 

8. The most recent report was the May 2009 report of Dr T.  It referred to the wife’s history of Bipolar Mood Disorder.  Dr T says that the wife came under his care when she was admitted into [N] Clinic in July 2008.  At the time her mood was elevated, she had racing thoughts and insomnia, and partial insight into her condition.  He says she eventually accepted treatment with mood stabilising medication and that she responded well to her treatment with her mania, her mood eventually stabilised and she had remission of her manic symptoms.  He said that as her manic symptoms improved she gained increasing insight into her condition.  Subsequently she remained depressed but that there were no symptoms of mania. 

9. He reported that she did not exhibit any psychotic symptoms when he saw her on 5 May 2009, that she had good insight into her condition and was willing to accept treatment.  There was no evidence of manic symptoms or suicidal ideation and her cognitive symptoms were intact. 

10. His opinion was that Ms S had poor compliance with medication when she was unwell, however, when she responded to treatment her insight into her condition improved and she became compliant with treatment.  Dr T said there was no evidence of alcohol or substance abuse.  It must be noted that there was evidence that the wife had been drinking when she was admitted on one occasion in 2007 before she came into Dr T’s care.  Dr T’s opinion is that there is a good prognosis with treatment.  He said that Ms S would require ongoing treatment and be reviewed every one to two months for the next three years. 

11. During cross-examination Dr T stated that during the first [N] admission Ms S was not particularly well and was experiencing a lot of manic symptoms and in that state did not have any insight and did not believe she was unwell and was reluctant to take advice.  During the second admission she was better but he considered that because of limited insight and compliance problems she fitted into the category of patients for whom he would recommend a CTO.  His records indicate that Ms S consulted him following discharge on 24 September 2008 as well as in October 2008 and November 2008.  He considered that she should have returned to see him after November and suspected that her intention in seeing him on 5 May 2009 was for the Court report.  Nevertheless, he considered that her condition in May 2009 was better than the previous year because she was not pressured in speech and not thought disordered and did not disagree with the diagnosis.  He thought the change had come about because she was taking the medication. 

12. Dr T gave evidence that Ms S’s diagnosis now was bipolar rather than schizoaffective.  He explained that the latter was a diagnosis that could be made when it was uncertain whether the diagnosis should more appropriately be schizophrenia or mood disorder and that the bipolar diagnosis is sometimes not made till later when the full blown mood swings are evident.  In his opinion the prognosis for bipolar was better that for schizoaffective disorder.  He said that Ms S’s present level of depression was mild and that she was worried about the Court case.  

13. Dr T’s evidence was that there would be a lot of signs if the illness is recurring, that patients do not relapse abruptly and that usually some weeks before there will be obvious signs.  He explained that patients are taught to recognise these signs as part of relapse prevention.  This appears to be consistent with what Dr G said in his report.  Dr T said that in the case of a severe relapse symptoms could be evident for only a couple of days.  He regarded this as an issue to discuss with patients when they are well and he indicated that this is something that he will discuss with Ms S in the next couple of reviews. 

14. Dr T said he did not think Ms S was a violent person.  He said that in 2008 he saw her at her worst when she was argumentative and assertive and in denial.  He said she was not aggressive.  In his view there was nothing aggressive in her history. He was not asked about the behaviour when she was put in seclusion at [C] Hospital.  The Court has accepted the father’s evidence that her behaviour at home was different to that described following admission into [C] Hospital.  It was submitted on behalf of the mother that Dr T’s opinion was optimistic.  The Court gives weight to the opinion of Dr T.  He saw

    
    

    Ms S when she was suffering very severe symptoms during a series of admissions in 2008 when he advised the father in relation to a CTO.  His medical records were before the Court and the Court had the advantage of hearing his evidence.  He said there was no evidence that the mother could be harmful physically.  Dr F and Dr G have also reported that there is no evidence that Ms S could be harmful to another person.  Dr T agreed that if Ms S had a severe episode of mania or depression it would have a negative effect on [X].  He was asked if it could be frightening or confusing and said it depended on the severity.  He said he would have no concerns about [X] being left in her care if she was stable in her mood. 

15. Dr T’s evidence was that he was confident that Ms S would remain stable if she continued with treatment.  In his view she needed to be on medication long term and needed to be compliant long term.  He said that her history of compliance had not been good but in his opinion that did not mean it would never be good.  When he saw her on 5 May 2009 her level of acceptance appeared a lot better than in August 2008.  The family reporter was of the opinion that at the time of the assessment in September 2008 the wife’s presentation indicated that she had made little progress in her insight to her mental health and that her history and presentation indicated that it was quite likely that she will require further hospitalisation at different times in the future.  The father said that he was disappointed that the wife had not acknowledged her diagnosis during the interview with the family reporter. 

16. Dr T said that Ms S did talk to him about natural remedies and that she raised that a lot when she was unwell in June, July and August 2008.  At that time she would not accept medication and was insistent on natural therapies.  He said that she did not raise this issue in May 2009 and was willing to accept medication.  He said that he would be concerned if Ms S wanted to trial the alternative remedies when the advice is that she should be on medication.  On the other hand if she was referring to future possibilities that would not be a concern. 

17. Ms S said in her evidence that she accepted the diagnosis but was unhappy with the way it was being used in Court proceedings.  She expressed a concern about the effects of medication and said that she had been studying to become a naturopath.  She wanted to find other options in the longer term and felt that Australia was behind other countries in using therapies other than drugs.  She said that she only developed insight into how her condition affected her and her life because she had been talking to her husband about it a lot.  She wanted to enjoy life with him and the children.  Dr T has said he would like to see her every six weeks and she said she would do that.   She said part of her acceptance of the diagnosis involved seeing a psychiatrist on a regular basis.  She thought that maybe in three years Dr T would have some other ideas and found the thought of being on medication for 20 years “scary”.  She said that at a point it had become apparent to her that bipolar was a diagnosis to work with.  She referred to “ticking a box” saying that she agreed to stay with Dr T for three years because stability was needed to see if the treatment was working.  The Court finds that the primary reason for Ms S’s attendance on Dr T in May 2005 was for the purpose of the report for the hearing. The Court formed the view that her statement that she accepted her diagnosis and would accept Dr T’s treatment was likely to have been influenced by her desire to assist the father’s case.  It also reflected her desire to continue her relationship with the father and enjoy family life with him.  The Court finds that this latter consideration is a very significant motivation for her at this time.  The family reporter’s evidence was that the important thing was for the wife to undertake the treatment even if she did not agree with the medication because it was likely to be effective regardless of how she viewed it.  The Court accepts this evidence.  It is consistent with the evidence of Dr T. 

18. The evidence indicates that the risk to [X] is not that Ms S would be violent towards him.  This appears to be the view of Dr T and also

    
    

    Dr G and Dr F.  It is also the view of the family reporter who said in cross-examination that she did not think that Ms S presented as a physical risk to [X]. 

19. A risk identified by Dr T and the family reporter is that if Ms S suffered a relapse her behaviour could be confusing and frightening for [X].  This would depend on the severity of the relapse. 

20. The family reporter identified the possibility of an inadvertent physical risk to [X].  An example of an inadvertent physical risk would be the occasion in 2007 when Ms S asked the girls if they would come with her “for a drive”.  The evidence is that the girls said no and that she left the room. 

21. The family reporter also said in her report that if it there was an unacceptable amount of disruption in Mr Saxe providing care to [X], consideration could be given to [X] living with him on alternate weekends and part of holidays rather than the shared care arrangement proposed by him.  She said the measure of disruption should relate to unplanned potentially traumatic events. When asked in cross-examination she said that if such a risk was found she thought that the alternate weekend time would probably be best from Friday afternoon until Sunday evening so that [X] could return to “his main base” to settle before going back to school. 

22. The family reporter’s evidence was that it could be feasible for [X] to spend overnight time with his father if there was a comprehensive plan to mitigate any episodes where he may be placed at risk.  She referred to the elements of such a plan in her report and in her evidence at Court.  One part of this would be for [X] to receive an appropriate explanation for possible events.  Ideally she thought he should be referred to a child and family professional who could assist his understanding of his family situation.  Because [X] was young she considered that he was more vulnerable to potentially frightening experiences that could arise and that he should therefore be shielded from experiences that are inexplicable and potentially frightening.  Her view was that [X] should not be left alone in Ms S’s care should he start spending longer periods of time in his father’s care.  She thought the father’s flexible working arrangements should be able to accommodate this.  The Court accepted the father’s evidence in relation to the flexibility of his working hours.  The father in recent years does not have a history of any considerable involvement in the workforce.  There was no evidence that this pattern was likely to change.  Part of the plan was also that Mr Saxe should attempt to ensure that his wife takes her medication and attends all medical appointments and that he should have contact with her medical professionals.  She also thought that part of the plan would be that [X]’s parents should be more co-operative so that the mother would be assured that the father would be honest with her and the father would be assured that the mother would respond helpfully.  Her opinion was that having such a plan in place would mitigate possible risks to [X]. 

23. Whether [X] can be shielded from events that are inexplicably potentially frightening depends very much on the father.  Indeed the family reporter’s evidence was that safety issues in the father’s household did not depend so much on Ms S’s mental health as on the father’s ability to identify and manage the situation.  The Court has accepted the father’s evidence that he has learnt more about his wife’s illness.  The Court also considers that his understanding may have someway further go given that he did not see need for Ms S to have further review between November 2008 and May 2009.  The evidence from Dr G and Dr T is that a relapse can be identified some time in advance, although possibly only two days in advance if the relapse is severe.  These considerations go some way to addressing the issue of the father being able to identify a potential problem in advance.  It is important for the father to continue to have contact with his wife’s medical professionals who can assist him in identifying signs of a relapse and for their to be some incentive for the wife to have regular review of her condition. 

24. The family reporter’s opinion was that despite some difficulties in the past, the father presented as a protective parent who was capable of identifying and implementing necessary interventions. She also thought the presence of other children staying in the home contributed to the impression that the situation is manageable by the father. 

25. The father’s drinking was raised as an issue in terms of his ability to be responsive to [X]’s needs.  The mother said that during the relationship the father regularly drank alcohol and that he drank to the point of becoming drunk on an average of at least once per week.  She remained concerned that he drinks alcohol to excess.  She says that on 26 September 2008 when [X] was spending time with his father he telephoned her and said “I’ve been drinking, lost count, you’ll need to pick [X] up.”  The mother says in her affidavit she agreed to this and when she arrived and the father brought [X] to the door she observed the father to be “unsteady on his feet, that his eyes were blood shot and his speech was slurred.”  On 10 October 2008 the father phoned again and asked if she would collect [X] as he had “had a drink.”  On 8 November 2008 she says the father phoned her at about 7.30pm and said “this is your pissed friend”.  When she arrived and the father came to her car she says that she observed that he was unsteady on his feet.  She says that a similar event occurred on 5 or 6 December when the father phoned her and said “had a drink. Come get [X].”  The mother expresses a concern that if the father drinks alcohol to excess while [X] is in his care he will not be sufficiently coherent to address issues that may arise in relation to the wife’s health.  

26. The father was asked about his drinking.  He agreed that on these four occasions he had said to the mother that he had a drink but not that he was incapable of driving, rather that he did not want to drive.  He denied that his drinking would have affected his level of response should his wife become ill.  He said that he is now earning his living as a [omitted] and he could not excessively consume alcohol because a condition of his employment was that he must have zero alcohol in his blood when he was working.  He was asked what he would do if a situation arose if his wife became unwell and he needed to take [X] from the house but could not drive.  He said that he would call a taxi. 

1. The father’s drinking on these occasions is a concern for a number of reasons.  One is that he passed the responsibility for [X]’s return to the mother.  Another concern would be the potential impact of excessive drinking on his capacity to assist his wife should she suffer symptoms of relapse and, of course, his capacity to care for [X] in such circumstances.  The father disputes the wife’s claim that he had drunk alcohol in excess on the occasions referred to.  The father and his wife were cross-examined about the circumstances surrounding each of her admissions into hospital.  The father was questioned about his reports to the hospital of the wife’s symptoms on those occasions.  Extensive medical records were tendered in evidence.  No issue was raised that any of the hospital records suggested that the father appeared in any way under the influence of alcohol on any of those occasions when he either telephoned the hospital or attended with his wife.  This tends to support the father’s claim that he does not have a pattern of excessive drinking.  The father said he would not oppose an order restricting him from drinking while [X] was in his care.  The Court finds that the father is sufficiently motivated to have [X] in his care to abide by such a restraint.  

2. As mentioned, one of the risks identified by the family reporter was an unacceptable amount of disruption to [X]’s care because of unplanned potentially traumatic events.  The father believes that his wife might need assistance three times a year.  This is consistent with the evidence.  She had not needed any assistance between the end of August 2008 and the date of the hearing.  The evidence is that a relapse is related to her compliance with medication and it has not been good in the past.  She and the father say it is better now.  The results of blood tests taken when she presented to Dr T on 5 May 2009 indicated that she was compliant at that time.  She has strong motivation to be compliant regardless of her beliefs about her need for treatment or the appropriate treatment.  Nevertheless from the history a relapse cannot be discounted.  The evidence of Dr G and Dr T is that there would be signs of a relapse.  The Court accepts that the father is now more aware of his wife’s condition than he was earlier in the relationship.  The Court accepts that the father is motivated to pay particular attention to his wife’s health.  While Ms S might well have a relapse the Court does not consider that this is likely to be so often or sudden as to disrupt the father’s care of [X] should [X] be spending more time with him. 

3. The family reporter’s evidence was also that although the father may feel torn between his loyalties towards the wife and his need to protect [X] she had formed an impression that the father put [X]’s interests first in such a situation.  The Court also formed the view from a consideration of all the evidence and from an observation of the father and the manner in which he gave his evidence. 

4. The evidence is that Ms S’s attendance at appointments for review of her condition is an important means of monitoring her condition, ensuring that she is compliant with medication and ensuring that both she and the father understand the issues around identifying any signs of relapse.  Orders made by the Court should provide an incentive for this to occur, particularly at [X]’s present age where he is young and particularly vulnerable.  There is no doubt that Ms S would prefer not to be involved in a regime of medication. 

5. The evidence of the mother was that she would cooperate with the father and take [X] back into her care should he contact her having identified signs of a potential relapse in his wife’s health.  During the litigation neither of the parties had been open with each other in relation to matters which potentially could impact on [X]’s safety.  They were both at fault in this. 

6. In this matter the Court needs to balance the potential risks.  There is the risk of [X] becoming frightened and confused by the wife’s symptoms should she suffer a relapse, and the potential for an unacceptable amount of disruption of his time with his father should those relapses be frequent.  On the other hand there is the risk for [X]’s emotional welfare should his attachment needs to his father not be met.  The Court finds that the father is motivated to monitor his wife’s health and is more likely to contact the mother than he has been in the past.  As [X] gets older he will be less vulnerable to symptoms of a relapse by Ms S. 

7. The Court finds that while there is some degree of risk to [X] of the nature discussed above, that risk is not of such a nature or magnitude that it should significantly limit his time with his father given [X]’s strong emotional need to spend time with his father.  The Court also finds that the risk identified is a risk which can be mitigated if there is an incentive for Ms S and Mr Saxe, at least while [X] is quite young, to obtain regular review of her medical condition. 

8. There were potential risk issues relating to the mother which concerned her protectiveness and vigilance in regard to the children in her care in the light of allegations against Mr H with whom she had been sharing a house since mid 2005. 

9. In April 2008 the mother was approached by a young man who wished to raise concerns about Mr H and wished to speak to her son, [V].  The evidence from police records tendered is that this person made complaints to the police shortly after and that on 8 September 2008

   
   

   Mr H was charged with aggravated acts of indecency with a person under 16 years, aggravated sexual assault with a child between 14 and 16 and possessing child pornographic images.  The mother said that when this person met her he made some “vague allegations”.  She said that she did not put a lot of credence in what he told her because it was not specific.  She made a point of saying that he was an adult at the time he came to speak with her.  The Court had the impression that this was said to minimise the significance to her of what she was told.  When asked in cross-examination if she would be surprised if the complainant alleged that the incident occurred when he was between 14 and 15 she said “it does a bit”.  This in itself is surprising in light of her later acknowledgment that the person discussed with her events that took place when he was a scout. 

10. Police records tendered in evidence record that on 15 April 2008 the complainant attended a police station and reported his conversation with the mother.  The documents state that he informed her of his allegations of past actions of Mr H upon himself and his concerns for her children.  He was reported to have told the police that during the conversation with the mother he outlined to her actions of Mr H towards her older son, specifically that he had been provided with gifts, a Playstation and had been made a scout leader. 

11. In cross-examination the mother acknowledged that she had been asked by the complainant about a phone Mr H had bought for scouting which he offered to [V].  She said that it had been offered to [V] “for me to contact him”.  She said electronic items had been bought by Mr H but they were in the lounge room for all to use.  She acknowledged that the complainant told her that Mr H had made him a scout leader when he referred to [V] also being made a scout leader.  She said she was aware of that and “he didn’t have to tell me”. 

12. The mother said in her evidence that she did know what “grooming” was. The DoCS records in evidence report that there had been a discussion of grooming in a telephone conversation with her on

    
    22 September 2008

    . The DoCS file records that the case worker reported speaking to the mother about the grooming of children and the mother saying that she was aware of the grooming process but could not recall anything suspect when Mr H and the children were living together. In cross-examinations she said she did not recollect “grooming being used in her conversation with DoCS” although she recalled telling the DoCS officer about the telephone and electronic Playstation.  The mother was asked in cross-examination whether she had discussed with Mr H the fact that he was no longer a scout leader.  She said that he had told her that he had a falling out in the scouting association because there were problems in his paperwork.  She said she thought this was in early 2006.  She was asked if she had reflected back on that after the information which had been given to her and said that she thought the scouting association would have contacted her if anything untoward had occurred. 

13. The mother said that she had spoken to [V] to see if anything untoward or improper happened and was satisfied that nothing inappropriate had occurred.  She said that Mr H was a long term friend and told DoCS that after her “divorce” she had nowhere to go and she heard that Mr H had nowhere to stay as well and they decided to live in the same house.  She said that in the home “he had his room and we had ours”.  The mother disagreed that she often had naps or went to bed early.  It was put to her that the family reporter had said in her report that [X] had said this.  The mother responded that she did not recollect that it was [X] who had made this comment.  She said she slept through the police arriving on the morning of 8 September 2008 to arrest Mr H when they also removed three computers of his. 

14. The mother was cross-examined about how long she remained living in the house after Mr H was initially arrested.  She gave the impression of being reluctant to acknowledge how long he had stayed.  The evidence of the family reporter was that when she had phoned the home to arrange the interviews for the Family Report that Mr H had answered the phone and “sounded proprietary”.  At her interview with the family reporter on 26 September 2008 Mr H was still at the home and the mother told the family reporter that he had immediate plans to move to other accommodation closer to his work.  The mother also acknowledged in cross-examination that she had met with him on some occasions after he left home and agreed that she had asked him for financial assistance with the cost of a medical consultation for [V]. 

15. The Court formed the impression that the mother gave her evidence about this in a generally avoidant manner and was reluctant to make any acknowledgment of the potential seriousness of the information given to her in April.  The Court formed the view that she attempted to minimise the significance of what she was told.  She said that what she was told was vague but in cross-examination acknowledged that in fact significant details were given to her. 

16. The family reporter’s evidence was that the information that she had been provided with about this matter added to concerns she had about the mother’s parenting of [X] in terms of her vigilance and protectiveness.  She was concerned that given that the mother had been made aware of the situation, i.e. the allegations and the charges, and of the potential risks to any children in her household, she did not take immediate steps to address that and also made no mention of it in the interview. 

17. The family reporter acknowledged that the mother talking to [V] was an appropriate step if she was unsure whether the concerns which had been raised were true or believed them not to be true.  She said that if the mother believed them to be true, the more protective action would be for Mr H to be removed from the household. 

18. The Court has found the way the mother gave her evidence about these events was unsatisfactory in that she was avoidant and reluctant to make any acknowledgment of the potential seriousness of the information given to her in April.  For these reasons the Court shares the family reporter’s concerns that the mother’s response to these events potentially could expose the children to risks. 

19. After she prepared her report the family reporter was provided with updated material which related to police charges against Mr H and also to Ms S’s 2008 admissions.  She said that these matters caused her to have concerns about both parents but noted that the same concerns were already present in relation to each parent when she concluded her report in December 2008.  She said that she still held the view that she had at the time she completed her report that [X]’s needs would best be served by having a greater balance of time between each parent “despite the extra concerns that seem to have been presented I still have that view.”  The Court’s analysis of the potential risks to [X] if he spends more time with his father also leads to the conclusion that there should be a better balance of his time between his two parents. 

Additional considerations

Section 60CC(3)(a) requires the Court to consider 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

1. [X] was seven and a half when he saw the family reporter.  He was quite clear in relation to his views when he saw the family reporter who says he told her almost straight away that “I want to stay with dad.”  He said it was “more fun” at his father’s house and that his mother was “always in bed” and often slept during the day.  The family reporter says that [X] repeated later in the interview that he had less fun at his mother’s house because his mother “always had a cough” and that he wanted the arrangements “to go back to how it was before” and that he missed his father.  She said [X] presented as significantly distressed by the reduced time he was spending with his father. 

2. The mother acknowledged to the family reporter that [X] missed his father. 

3. It was submitted on behalf of the mother that there was no wish expressed by [X] and if there had been because he was an eight year old child the Court should not place a great deal of weight on it because he would not be as aware as the adults are of the circumstances surrounding the family dynamics. 

4. Although [X] is very young his stated views in the matter need to be considered in the context of the strong attachment which he has with his father and the distress which the family reporter says he is exhibiting because of his reduced time with his father.  Because his views reflect these other matters identified by the family reporter in the overall context of this matter the Court finds that [X] has views which need to be given some weight. 

Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons including any grandparent or other relative of the child

1. [X]’s relationship with his parents has been discussed previously. 

2. The family reporter described Ms S’s presentation at the interview with her as anxious and demonstrating a strong sense of entitlement.  However, she observed that her interaction with [X] was warm and relaxed.  [X] responded positively about her when asked.  He referred to her as “[first name omitted]” and said “she’s the nicest.”  He told the family reporter that “she plays with me...does things with me.”  The family reporter’s opinion was that [X]’s own positive manner towards her and his comments about her seemed genuine and she concluded that it seems likely that they have a reasonable relationship.  She noted that no concern had been raised about Ms S’s manner with children apart from her mental health issues.  There is no reason not to accept the family reporter’s opinion that it is likely that [X] has a reasonable relationship with Ms S and accordingly the Court finds that this is the case. 

3. The father says that [X] gets along with his brother [V] who is much older than [X] and is mostly involved in high school activities but does not have a good relationship with his other brother, [W], who, the father says seems to have problems with interpersonal skills.  He says that [X] tells him that he is “always getting picked on by [W].”  The mother says that [X] has a good relationship with both [V] and [W]. 

4. The family reporter saw [X] with his half sister [Z] and also with [V] and [W].  There are no issues raised by her in regard to his relationship with any of these siblings which would particularly impact on the issues raised in the matter.  It is obvious that [X]’s key relationships are with his parents. 

5. Neither of the parents appear to have significant links with extended family members.  

Section 60CC(3)(c) requires the Court to consider 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;

1. The father’s counsel submitted that the mother sought to restrict [X]’s relationship with his father some months prior to her first having any knowledge of Ms S’s mental health issues.  He says that at the time this was on the pretext that the father was intending to abduct [X]. 

2. It is clear that problems concerning [X]’s time with his father began from around the end of January 2008.  The mother called the police making complaints about the father including what he had said about taking [X] from school.  The Court finds that the mother’s expressed concerns at this time were exaggerated. 

3. The mother’s affidavit evidence suggests that negotiations were underway.  However, as noted, the evidence appears to be that a fairly limited agreement had been reached at the time.  The Court is not convinced on the evidence that the mother at that time was showing a willingness to facilitate and encourage a close relationship between [X] and his father. 

4. Following the disclosure to her of Ms S’s mental health issues and following receipt by her of the report by Dr G, the mother’s focus has been on the issues which she perceived to arise from that.  It is fair to say that Dr G’s report would have given her cause for some concern. 

5. The evidence is that the parties’ communication has improved, although the mother still expressed a qualified view about this. In cross-examination she said that the relationship between herself and the father was much more civil than it had been and that there was more open communication. She said that the father would have a conversation with her if there was something about [X] he wanted to discuss and that she would phone him.  She added that she would have to admit that she was still “guarded.”  She said she would agree to taking [X] if the father contacted her and said that his wife was having problems. 

6. The father in cross-examination said that there had been mistrust between he and the mother but that they were “talking better now.”  He said that communication had improved and that he and the mother communicated in person and by phone. 

7. While the evidence indicates that the mother was less than willing to foster the relationship between [X] and his father in the period following January 2007 the intervening issue of Ms S’s health has given the mother some reasonable grounds for her concern especially in view of the lack of the father’s openness about this.  The mother gives evidence that [X] could return to her should the need arise.  This is an encouraging sign. 

8. Although the father makes criticisms of aspects of the mother’s care of [X], the Court does not find that he is unwilling to foster [X]’s relationship with his mother. 

60CC(3)(d) requires the Court to consider the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living)

1. The evidence is that the reduced time which [X] has been spending with his father since early 2008 poses an emotional risk to him because of his attachment to his father and his perception that he is not able to spend the amount of time with his father that he remembers enjoying with him previously. The Court accepts this evidence. It is an important consideration in the matter. 

Section 60CC(3)(e) requires the Court to consider 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;

1. This is not an issue in the matter. 

Section 60CC(3)(f) requires the Court to consider the capacity of each of the child’s parents and 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.

1. Counsel for the father raised concerns about supervision of [X] in the mother’s household, the mother’s health issues, her need to take naps and the fact that she had regarded herself as significantly disabled and obtained a disabled parking sticker.  He also raised concerns about [X]’s school attendance. 

2. The mother agreed she had a disability sticker.  She said it was because of problems with her back and knees.  She has heart rhythm problems and takes medication for that.  She said that she stopped working when she was diagnosed with that problem in mid 2004 but that she is not presently working.  She said that she would be soon going for a job assessment through Centrelink and that possibly she might be able to do part time office work.  She acknowledged that the Department of Education had contacted her about [X]’s poor attendance at school in 2007, but that after a discussion about her circumstances she heard no more from them.  She says that [X]’s school attendance has improved and that he only misses school when he is sick.  The school attendance records in evidence do show an improvement.  They also show that even in 2009 there were a significant number of occasions when [X] has been late to school.  The mother says that she is delayed sometimes in the morning because her middle son needs attention.  She says that [V] gets up and gets his own breakfast and gets himself off to school and that she and the other 2 boys get up later and she drops each of them of at school. 

3. Following contact by the police DoCS records show that a caseworker spoke to the principals of the high school attended by [V] and the primary school attended at that time by both [X] and [W]. The principal of the primary school reported that he had no concerns for either [W] or [X], that they both had had a good year so far, were progressing well academically, were well behaved and that their attendance was excellent.  He reported that the mother was involved with the school and on the committee for the Parents Association and that she was involved in organising school community events as the purchasing officer and worked voluntarily at the school canteen one day a week. 

4. After the police arrested Mr H at the mother’s home observations of her house made by police were reported to the Department of Community Services.  It was reported that there was cat excrement in the house and that it was full of rubbish.  The mother agreed that this was discussed with her by a DoCS officer.  She said that she had told DoCS that Mr H had a litter box for the cat in his room but that the cat might miss it.  She told DoCS that she always had arguments with Mr H about that issue.  She denied that the house was full of rubbish.  She said that she had been ill and that the house was a bit untidy but that it was not dirty or full of rubbish.  She said that a couple of weeks laundry had piled up.  She told DoCS that she has piles of boxes in her living room and that she was cleaning the bedrooms and putting things in the boxes.  The DoCS officer records that the mother was spoken to about health and safety issues and said that it would be cleaned up very soon. 

5. The evidence indicates that to some degree the mother’s ill health or tiredness impacts on her capacity to be on top of things at home.  [X]’s reports of having “more fun” at his father’s home are credible in these circumstances.  The family reporter considered that the mother’s description of her “health issue” and need for rest “seemed to support the father’s allegation of her being less active in her parenting than is desirable, to some extent at least.”  The family reporter had also expressed an impression of the mother being somewhat detached in her manner towards her relationships, including that with [X].  There are also the concerns about the mother’s lack of vigilance and protectiveness in relation to issues arising from the information given to her when allegations were raised about Mr H.  The Court would not make a finding that the mother does not have the capacity to care for [X]’s emotional and intellectual needs.  However, the Court does have some reservations about the mother’s parenting capacity and certainly this is a factor which would support [X] spending further time with his father so that his care can be more balanced between the parties. 

6. The father’s evidence is that he chose his present job because of the flexibility it gives him in working hours.  He says he is employed by a driving school but can choose his hours.  He would work from 9.30am in the week he has [X] and for longer hours in the other week.  The Court accepts the father’s evidence about his working hours. 

7. The evidence of the family reporter is that the father presented as a protective parent.  There is no reason to doubt that he has the capacity to provide for [X]’s needs including his emotional and intellectual needs. 

Section 60CC(3)(g) requires the Court to consider 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;

1. There are no further issues to consider. 

Section 60CC(3)(h) requires the Court to consider if the child is an Aboriginal child or a Torres Strait Islander child; 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 the likely impact any proposed parenting order under this Part will have on that right;

1. This is not a relevant consideration in this matter. 

Section 60CC(3)(i) requires the Court to consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. These issues have been discussed, particularly in relation to the mother’s protectiveness of the child in the context of what was said to her about Mr H. 

2. The fact that the father phoned the mother on four occasions to collect [X] when he had been drinking to the extent that he thought it would not be appropriate for him to drive also reflects adversely on his attitude to the responsibility of parenthood. 

3. Similarly, neither of the parties has been open to the other about important issues potentially affecting [X]. 

4. The Court finds that in regard to these matters each of the parents should have behaved with a higher degree of parental responsibility. 

Section 60CC(3)(j) requires the Court to consider any family violence involving the child or a member of the child's family and Section 60CC(3)(k) requires the Court to consider any family violence order that applies to the child or a member of the child's family, if  the order is a final order; or the making of the order was contested by a person;

1. There are no current issues raised about family violence in this matter. 

Section 60CC(3)(l) requires the Court to consider 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;

1. This is a matter where an issue is Ms S’s continuing compliance with review of her condition.  The father did not accept a need for a review between November 2008 and May 2009.  The Court finds that the primary purpose of the appointment with Dr T in May 2009 was to obtain a report for the litigation.  One option would be to make interim orders to ensure that such continuing review takes place.  At the same time the evidence is that co-operation between the parties has been difficult in the context of the continuing litigation and this is a matter where it is very much in [X]’s best interests for there to be co-operation between his parents.  The Court will therefore frame orders which seek to provide as far as possible for final resolution of matters in dispute without the need for the matter to come back before the Court.  

Section 60CC(3)(m) requires the Court to consider any other fact or circumstance that the court thinks is relevant.

1. No further considerations. 

Section 60CC(4) requires consideration of the extent to which the child’s parents have taken the opportunity to participate in decisions about the major long term issues in relation to the child and the extent to which the parent has facilitated or failed to facilitate the other parent’s participation in making such decisions or in being able to spend time with the child or communicating with the child.

1. Relevant issues have been discussed. 

Parental responsibility

1. Section 61DA(1) states that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child

2. Section 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. The presumption may be rebutted if there is evidence which satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility for them. This is a matter where there are no relevant issues of family violence or abuse.

3. At the conclusion of the hearing each of the parties and the Independent Children’s Lawyer agreed that there should be an order for equal shared parental responsibility for [X].  The Court agrees that this is in his best interests. 

4. Given that there will be an order for equal shared parental responsibility, as explained in Goode & Goode [2006] FamCA 1346 the Court is required to consider the provisions of section 65DAA(1):

   If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

5. The father seeks an order for shared care.  The Court has found that [X] would benefit from a meaningful relationship with his father and he needs more time with his father to achieve this. 

6. The family reporter recommended that consideration be given to [X] living alternate weeks with his father.  This was tempered by a recommendation that he liaise with his wife’s treating professionals regarding her compliance with treatment and her ongoing health status.  The family reporter’s further recommendation was should it be considered that there is an unacceptable amount of disruption to the father providing alternate weekly care to [X], consideration should be given to [X] living with him alternate weekends and half holidays. 

7. The Independent Children’s Lawyer points to the failure of Ms S to consult with any mental health professional between 10 November 2008 and 5 May 2009 and to the father’s evidence that at the time he did not see the need for this as she appeared to be doing well.  Also of concern was the father’s acknowledgment that he had contacted the mother on four occasions to ask her to collect [X] as he had been drinking.  These are all valid concerns.  For these reasons the Court does not find that it is in [X]’s interests that an arrangement for shared care be introduced at this time. 

8. Section 65DAA(2) provides that if an order is made for equal shared parental responsibility and the Court does not make an order for the children to spend equal time with each of the parties, the Court must consider whether the children spending significant and substantial time with each of their parents would be in their best interests and if that would be reasonably practicable.

9. Section 65DAA(3) provides that a child will be taken to spend substantial and significant time with a parent only if:

   (a) the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends or holidays; and

   (b) the time the child spends with the parent allows the parent to be involved in:

   (i) the child's daily routine; and

   (ii) occasions and events that are of particular significance to the child; and

   (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

10. The Court has concerns about some aspects at least of the mother’s capacity to provide for [X]’s needs.  This, together with the finding of [X]’s emotional need to spend more time with his father leads the Court to the view that [X]’s time with his father should be increased substantially.  The Court has also found that the risk identified should [X] spend time in his father’s household is one which will lessen as [X] gets older and which can be significantly mitigated if Ms S obtains regular review of her medical condition.  The Court considers that at this time an order should be made providing that [X] spends time with his father on a fortnightly pattern which will commence from after school on Thursday in the first week to before school on the following Tuesday morning and will include an afternoon with his father from after school until 8.00pm on the following Thursday.  The family reporter was of the view that while it would be beneficial for [X] to spend time with his father while his half siblings were there, [X] would also benefit from spending one-on-one periods of time with his father.  The orders will reflect this. 

11. The Court will also make an order allowing [X]’s time with his father to increase to include time from after school on Thursday to before school on Friday in the second week of the fortnightly cycle, i.e. the week following the five consecutive days of time with his father.  This however will be subject to a condition relating to Ms S’s attendance for regular review of her condition in the twelve months following the making of these orders. 

I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of Walker FM

Associate: 

Date:  29 July 2009