Thackeray and Thackeray

[2013] FCCA 1105

FEDERAL CIRCUIT COURT OF AUSTRALIA

THACKERAY & THACKERAY [2013] FCCA 1105

Catchwords:
FAMILY LAW – Parenting orders – father sought overnight time with the children – significant mental heath concerns of father – inadequate financial capacity and inappropriate accommodation of father to spend overnight time with children – children to live with the mother – mother and father to have equal parental responsibility – children to spend periods of day time with father.

Legislation:  

Family Law Act 1975 (Cth) ss.11F, 62G, 60CC(3)
Family Law Regulations 1984 (Cth) reg.7

Applicant: MR THACKERAY

Respondent: MS THACKERAY

File Number: MLC 8587 of 2012

Judgment of: Judge Hartnett

Hearing date: 24 July 2013

Delivered at: Melbourne

Delivered on: 16 August 2013

REPRESENTATION

The Applicant: In Person

The Respondent: In Person

THE COURT ORDERS BY CONSENT THAT:

1. The mother and father have equal shared parental responsibility in respect of the children of the marriage, X born on (omitted) 2003 and Y born (omitted) 2007 (‘the children’).

2. The children live with the mother.

THE COURT ORDERS THAT:

1. The father spend time and communicate with the children as follows:-

   (a)each alternate Friday from 6.00pm until 9.00pm to commence 30 August 2013;

   (b)each alternate Saturday from 8.30am until 2.00pm and Sunday from 12.00pm until 4.00pm to commence 24 August and 25 August 2013.

   (c)each Tuesday and Thursday by telephone between 6.30pm and 7.00pm with the father to facilitate the call and the mother to make the children available;

   (d)on Father’s Day from 10.00am until 2.00pm;

   (e)on Christmas Eve from 12noon until 10.00pm;

   (f)on Easter Sunday from 10.00am until 2.00pm;

   (g)on the children’s birthdays and the father’s birthday from 3.30pm until 6.00pm, but should such birthdays fall on a weekend, then from 10.00am until 2.00pm; and

   (h)such other or further times as agreed between the parties.

THE COURT ORDERS BY CONSENT THAT:

1. For the purposes of changeover, the mother deliver the children to the entrance of the (omitted) Caravan Park, (omitted) with the father to collect the children at the entrance and the children be delivered to the entrance by the father at the conclusion of time spent, with the mother to collect the children from the front entrance.

2. The father continue to attend as directed upon Dr G, psychologist, and engage with any treatment recommended and remain compliant with any prescribed medications.

3. The father be restrained from discussing his mental health or emotional well-being with the children.

4. The father be restrained from exposing the children to any criminal activities or exposing the children to any persons involved in criminal activities.

5. The father and mother attend a parenting after separation program and provide to the other a certificate of completion, such attendance and completion to be within a period of six months of this date.

6. The parties be restrained by themselves, their servants and/or agents from denigrating the other in the presence and/or hearing of the children.

7. Each parent be reasonably permitted to telephone the children whilst the children are in the other party’s care and the parent who the children are spending time with make all efforts to facilitate such telephone communication.

8. The children be reasonably permitted to contact either parent at the child’s request and the parent who the children are spending time with make all efforts to facilitate this.

9. Each parent keep the other advised of any change to their contact telephone number or email address within 24 hours of any such change.

10. Each party advise the other at least 21 days prior to any proposed change of address, and the address to which they are proposing to move to.

11. Both parents are permitted to liaise directly with the children’s school to obtain any necessary information about the children’s progress, and these orders are to act as an authority for same.

12. Both parents be at liberty to attend any school or extra-curricula activities to which parents are ordinarily invited, including, but not limited to, parent teacher interviews and sporting events.

13. Each party advise the other forthwith of any serious illness or injury to the children within 24 hours of the children requiring medical attention, and immediately of any hospitalisation of the children.

14. Each parent is to keep the other advised of any medical practitioners treating the children, including, but not limited to, doctors, dentists, counsellors, and any specialist practitioners.

15. Both parties are permitted to liaise directly with any medical practitioners or counsellors who are treating the children, and these orders act as an authority for same.

16. The parties are to keep a communication book to be established by the father and to travel with the children at changeover and with content to be limited to child-related issues only.

17. The parties be restrained from discussing these or any other court proceedings with, or in the presence of, the children.

18. The father follow all directions from his treating general practitioner, including, but not limited, to the taking of medication.

THE COURT ORDERS THAT:

1. The children to attend counselling as required and as determined in consultation between the mother and any counsellor whom the children are then attending upon.

2. Upon the father obtaining appropriate accommodation, the parties attend mediation to consider an extension of time between the children and father and to include overnight time.

3. The mother be permitted to travel interstate with the children for the purposes of holidays at any time so long as she provides the father with 28 days written prior notice and provides him with an itinerary as to the children’s accommodation whilst on the holiday.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 8587 of 2012

MR THACKERAY

Applicant

And

MS THACKERAY

Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced with the filing by the Applicant father of an Initiating Application wherein he sought parenting orders with respect to the parties’ two daughters X born on (omitted) 2003, who is now aged 10 years and Y born on (omitted) 2007, who is now aged 6 years (‘the children’). Essentially, he sought to spend time with the children on an overnight basis. The Respondent mother filed a Response on 10 October 2012 which was subsequently amended by an Amended Response filed 22 July 2013.  The father at trial sought orders different from those set out in his application but which were as contained in a Case Outline & Summary document filed 19 July 2013 on his behalf.  At that time he was represented by Hartleys Lawyers who filed a Notice of Ceasing to Act prior to the final hearing.  The mother had also been represented by Lampe Family Lawyers who filed her Affidavit on 22 July 2013, but who did not appear at the final hearing of the matter and who also had ceased to act.  An Outline of Case document had been filed on behalf of the mother by that firm on 22 July 2013.

2. At the commencement of the proceedings, the Court asked each of the parties as litigants-in-persons to set out those documents on which they each relied and to clarify those orders which on the materials it appeared they would seek by consent, as distinct from those matters which required judicial determination. 

3. There was introduced into evidence at the commencement of the proceedings, a Family Report dated 7 June 2013 and prepared by Ms C, a Regulation 7 of the Family Law Regulations 1984 (Cth) family consultant (‘the family consultant’). In addition, two documents marked as exhibits were tendered in evidence by the father without objection from the mother, the first being correspondence from Mr K (Mr K, being the manager of (omitted) Caravan Park in (omitted)) dated 23 July 2013, and the second a report in respect of the father prepared by Associate Professor Dr D, Consultant Psychiatrist, dated 10 January 2013. That report had been earlier provided to the family consultant to assist her in the preparation of her report.

4. The father relied upon Affidavits sworn by him on 19 September 2012, 5 February 2013, 18 April 2013 and 9 July 2013 together with his Case Outline & Summary document filed 19 July 2013.  The mother relied upon an Affidavit of evidence-in-chief sworn 19 July 2013, but which referred to earlier Affidavits sworn by her on 8 October 2012 and 21 February 2013 which she sought also to rely upon.  The mother further relied upon the Outline of Case filed on her behalf on 22 July 2013.

History

1. The father was born on (omitted) 1969 and he is aged 44 years. He is currently unemployed and in receipt of a disability pension. He was previously employed as a (omitted). The mother was born on (omitted) 1977 and she is now aged 36 years. She is employed in a full-time capacity of some 35 hours each week, but on a roster basis as a (omitted). The parties commenced their relationship in 1995 and married on (omitted) 1997. They separated on 1 July 2012 after a marriage of some 15 years. Since separation the children have resided with the mother and have spent time with their father. In the face of the parties’ inability to agree as to what time he should spend with the children, and the circumstances relating to the spending of that time, the father issued an application in this Court in September 2012, being not long after the parties had separated. When the matter first came before the Court on 9 October 2012, orders were made by consent that the children continue to live with the mother; that the parties attend upon a family consultant for the purposes of a s.11F of the Family Law Act 1975 (Cth) (‘the Act’) child inclusive memorandum to the Court; and that the father’s time with the children be reserved until the release of that report. On 12 November 2012, further orders were made by consent which provided for the father to spend time with the children for one and a half hours each Tuesday and Thursday, and for three hours each Saturday, together with four hours on Christmas Eve (being 24 December 2012) with all such time spent with to be supervised by the mother, or the paternal aunt or maternal grandparents. Special provision was made for the Christmas Eve period when such supervision would be provided by the paternal grandfather and the paternal uncle. An order was made by the Court that the father attend upon Dr D for the purposes of psychiatric assessment, and the father was to continue his appointments at (omitted) Psychology. A further order was made pursuant to s.62G of the Act for a family report to be prepared.

2. The matter returned to this Court for a further interim hearing with orders again being entered into on 6 February 2013.  Pursuant to those orders, the father continued to spend time with the children each Tuesday, Thursday and Saturday, and for greater periods of time, with such time being unsupervised, save as to the Saturday which was a period from 9.30am until 6.00pm and which was to occur with the father’s sister, Ms L, being in substantial attendance for the period up until 16 March 2013, whereupon thereafter, all time spent with became unsupervised.  Those orders were made following the provision of a report by Associate Professor Dr D dated 10 January 2013 which was before the Court to assist it in its determination.  Further consent orders were then made between the parties on 22 April 2013 which provided for telephone communication between the father and children for special occasion days, and for time spent with between the father and the children to occur as set out in order 3(a) and (b) of those orders which relevantly provided as follows:-

   a)each alternate Friday from 6.00pm until 9.00pm, commencing 26 April 2013; and

   b)each alternate Saturday from 10.00am until 2.00pm, and Sunday from 12.00pm until 4.00pm.

3. In addition to the orders made in this Court, the mother obtained an interim Intervention Order on 12 September 2012.  That Order was made at the Magistrates Court at Sunshine.  The applicant was a (omitted) and the affected family members protected by the order were the mother and the children.  The interim Intervention Order was made with the father being present at the hearing and not agreeing to the making of the order. The mother subsequently withdrew from proceeding with the application when listed for a final hearing on 17 December 2012. On 4 December 2012, the father was charged with obtaining property by deception, theft and burglary, but those charges were withdrawn in June 2013.

Evidence

1. Statements of facts in these reasons are findings of fact on the balance of probabilities.

2. The marriage between the parties encountered difficulty as a result of constant financial pressures on the family unit and the father’s drug use in particular of the illicit drugs ‘speed’ and ‘ice’ as described by the mother.  The father was often unemployed and had problems holding down a full-time job for any lengthy period.  In 2008, the parties were forced to sell their home as they were not able to meet the then mortgage repayments.  The mother remained employed and both parties cared for the children as they were able. Both had a good relationship with the children.

3. At around the time of the parties’ separation, they had received an eviction notice from their landlord and the mother informed the father that she was leaving the marriage and taking the children with her.  She had organised a rental property which she moved into in the following week.  Prior to her moving into the rental property, and on 21 July 2012, the mother received a text message from the father which read “please find the note on the garage door, it will explain a lot.”  The mother found a suicide note on the garage door.  She broke into the garage and found that the father had hung himself on his gym set using the weights tied to a rope around his neck.  He was breathing, but she believed unconscious as he did not respond to her screaming.  She managed to get the neighbour from next door to assist; cut the rope with a knife to secure the release of the father; and called the ambulance.  The father was transported to the (omitted) Hospital for assessment.  The father discharged himself from the hospital later that day.  He walked to the former matrimonial home, got his keys and left in his car, driving in an erratic manner around the streets.  The police were called, but he had fled in the vehicle.  His erratic behaviour continued over the next few days.  The father placed his belongings in the front yard and poured petrol on them, setting them alight.  This was in front of the children. He slept in his car at the front of the house and refused to come inside.  Some two days after the attempted suicide, he said to the child, X, words to the effect, “daddy wants to kill himself, he tried to hang himself.”  On his release from the (omitted) Hospital, the father avoided the Crisis Assessment and Treatment team (‘the CAT team’) for several days until they located him and gave him medication for his depression. The mother’s parents came and stayed at the home during this time as the mother did not feel safe with the children on her own.

4. On 28 July 2012, the children and mother moved from the former matrimonial home into a rental unit.  The CAT team arrived at the family home when the mother was in the process of moving and found the father curled up on the garage floor.  They admitted him as an involuntary patient to the (omitted) Psychiatric Unit, but again he discharged himself.  The police were called by the CAT team.  They looked for the father but could not find him.  The father contacted the mother that night and asked her to take him to the (omitted) Hospital.  He was admitted and remained in hospital for several days.  Upon discharge he was released into the care of his sister, who resides in (omitted).

5. Within 48 hours of being released from the hospital, the father was at the front door of the mother’s rental property asking to see the children.  The mother agreed that he could do so on the basis that she be present.  The father saw the children for short periods under the mother’s supervision, each Tuesday, Thursday and Saturday until 12 September 2012.  At that time he started to pressure the mother about their relationship.  She determined it would be preferable for him thereafter to see the children in a public place.  When she told him this, he became aggressive and told both children that he would not see them again and said in front of them words to the effect “watch the news tonight. I am going to run myself off the road.”

6. The father continued to harass the mother and his behaviour became more unpredictable and erratic.  He stalked her by telephone and by following her in his car.  He would park his car at the front of her unit and sleep in it.  He would knock at the door, asking for coffee and blankets, and asking if he could have a shower.  Initially, the mother allowed him into her home for a shower and coffee. The father’s behaviour did not improve. He would cry in front of the children, pleading to come home and saying that it was the mother’s fault that he was sleeping in his car.  He also pleaded for money.  His behaviour at that time had an adverse impact on both children.  It was highly stressful for the mother.

7. The father had been diagnosed with depression in mid 2012 and commenced to take medication.  He claims to continue to take such medication being Lexapro at 20 milligrams per day.  After a period of time of being very depressed and homeless, the father commenced to reside with a friend, Mr B, in a three bedroom house. By the time of the father swearing his Affidavit on 5 February 2013 he had commenced to reside with his sister in a three bedroom house in (omitted).  He claimed to be looking for his own place in which to reside.  He was continuing to see a counsellor once each fortnight and sought that the time he was then spending with the children be moved to unsupervised time.  The father had commenced attending with psychologist Dr G in (omitted) every two weeks around September 2012.  In October 2012, the mother reported increasing concerns about what she believed was the father’s anger and suicidal behaviours and contacted the CAT team.  The father was admitted into the psychiatric unit of the (omitted) Hospital for assessment and held involuntarily for three days and then discharged to the home of his sister in (omitted) where he remained for some months.

8. Once the father left the home of his sister he commenced to reside with a friend in (omitted) for a brief time, before living at a truck depot in (omitted) in a driver’s room whilst waiting for a house to become available to him in (omitted).   The home in (omitted) was to be a private rental through a friend costing approximately $275 each week.  The father did not at that time, nor has since, had the capacity to pay such sum in rental payments.  He anticipated in his Affidavit sworn 18 April 2013 that he would be able to obtain secure employment in the “next month or so”. 

9. By the time the father swore his Affidavit on 9 July 2013 he was residing at the (omitted) Caravan Park in (omitted).  He had been so residing for approximately four months and has his own caravan, provided to him by the mother.  He proposed that the children stay in the caravan overnight in a double bed that could be set up.  The evidence he put before the Court from the caravan park manager, Mr W, was to the effect that the caravan park was a safe environment for both residents and visitors and that all activities within the caravan park were closely monitored by 24 hour Closed Circuit Television (‘CCTV’).  Additionally, there were security patrols of the Caravan Park.  Mr W said in his correspondence (Exhibit ‘TT2’):-

   “Our amenity block is separated for Male and Female, and each sector has its own private cubicles with a locking door, and an internal shower screen to maintain as best privacy as possible.  Children over the age of 5, and up to 16 must use the appropriate toilet to there (sic) gender, and be escorted by an adult to the amenities area. (This also is a Park Policy).  This block is also covered externally by CCTV for security purposes.”

1. The father deposed in his Affidavit sworn 9 July 2013 and as to the caravan park, at paragraphs 17 to 19 inclusive:-

   “17.  The Caravan Park is safe and many children live there.  I have never witnessed any violence at the Caravan Park and the people that live there are friendly, quiet and respectful. 

   18.    If the children have to attend for the bathroom I always ensure that I am supervising.  There are cameras around the caravan park for extra safety. 

   19.    I understand that a caravan place is not an ideal home however children attend caravan parks for holidays all the time and their parents capacity I’m sure is not called into question.”

2. The father further deposed in paragraph 21 of his Affidavit of 9 July 2013 that he had in April 2013 lost his licence for a period of six months (for speeding).  He is not due to regain his licence until November 2013.  His intention is to obtain his licence again and commence to be employed as a (omitted) so that he can better provide for the children. 

3. As to his health, the father described himself as currently in good health, taking antidepressants for depression on a daily basis in accordance with his general practitioner’s instructions.  He claimed to feel happy and stable and see his general practitioner every three months for a check up. There was no medical evidence before the Court to corroborate that assertion. He claimed to have had no suicidal thoughts since July 2012. He accepted his relationship with the mother was over.

The evidence of the family consultant

1. The family consultant referred to Dr D’s report wherein Dr D reported that the father presented as a mildly anxious man who had no serious current psychological or psychiatric problem identified or diagnosed at the time of the examination by him which was in January 2013.  Dr D was of the opinion that the father did not suffer from a major mental disorder or a personality disorder but that he had suffered from a significant adjustment disorder with depressed and anxious mood.  That adjustment disorder was related to the separation in the marriage; the breaking down of the relationship with the mother; and other matters related to work. Dr D was of the opinion that the father’s behaviour became unpredictable and erratic with some transitory suicidal behaviour with little intent to actually kill himself earlier in time.  Subsequent assessments by psychiatric staff at the time demonstrated an anxious, unhappy man, with poor coping skills having significant difficultly adjusting to his newfound circumstances.  Dr D noted that the adjustment reaction that the father had gone through had then resolved, and he did not believe there was any current impairment in parental ability or long term parental capacity related to mental health illness or disorder.  He concluded that he did not believe there was any risk of violence to the mother or to the children, and that there was no mental health indication contrary to the father having unsupervised access to the children. 

2. At interview on 15 May 2013, the father indicated to the family consultant that the then time spend with arrangements were working well, but that he still sought to spend overnight time with the children.  The mother also agreed the then current arrangements were progressing well, albeit there were some difficulties which are set out in her Affidavit sworn 19 July 2013, and which include that the father on one occasion failed to feed the children properly due to his limited financial means.

3. The father was positive about the mother, as a mother to the children, but identified to the family consultant concerns about her health, although he was unable to provide any precise details. 

4. The mother presented to the family consultant as child-focused, responsive and with concern for the children’s emotional well-being.  The family consultant noted the mother lives in a rental property with the children and works full-time.  She noted the mother’s satisfaction with the current arrangements for the children seeing their father and that the mother commented that the children looked forward to spending time with him and that they were happy when they returned. 

5. The mother reported that the children were referred by their doctor for counselling to assist them with the impact of separation and with their father’s unpredictable behaviours.  They have been attending with Ms D, psychologist, in (omitted) every three weeks since July 2012.  The children are progressing well at school and generally.  They are in before and after school care to accommodate the mother’s work schedule.  They spend regular time with their maternal grandparents and maternal aunts. 

6. Despite her concerns, the mother continues to support the father.  She involves him in the children’s school activities, buys him food and other basic supplies, gives him money, transports the children to and from spending time with their father, and in general appeared to the family consultant to take on a parenting role with respect to the father.  The children were observed to be clearly attached to their father, and a close bond was evident. 

7. The family consultant observed that the relationship between the mother and children, and father and children was warm and companionable, with both children seeking and receiving each of their parent’s attention.  In her evaluation, the family consultant noted the children had exhibited anxious behaviours and pseudo-parental concern for their father’s emotional well-being in the period post-separation.  She noted the mother had remained supportive and committed to promoting the children’s relationship with their father, so long as they were safe and emotionally protected. 

8. The family consultant noted the children had been embroiled in the parental dispute, as the father had repeatedly confronted them about his own circumstances and sought information from them about their mother.  X, at 10 years of age, seemed to perceive her father’s emotional survival as dependant on her vigilance and presence, whilst Y remained fearful that the father may compromise her safety and that she would not be able to say no.  Both girls were aware of, and indicated they were fearful of, their father’s potential to engage them in reckless and immoral behaviours, such as stealing swimming costumes from a shop. She said of the father, at paragraph 44 of the Family Report:-

   “Mr Thackeray is an anxious man saddled by grief, with poor coping skills which have compromised his ability to effectively deal with many of the issues he faces.  Mr Thackeray would benefit from paying attention to his own feelings to gain an understanding of the emotional world of others, specifically the children.  Mr Thackeray taking responsibility for his own life and continuing with counselling are likely to assist matters relating to separation to settle and ultimately provide the children with a parent who is able to focus on their needs.”

9. In the family consultant’s view, the father was required to cease to engage the children in a chaotic lifestyle and have appropriate accommodation before there could be a consideration of gradually increasing the time they spent with him to include overnight time.  She noted at paragraph 46 of the Family Report:-

   “Whilst Mr Thackeray’s mental health is reported as currently stable and without a clinical diagnosis, his emotional stability is fragile and in future times of life’s stressors he may be vulnerable to again behaving erratically.  To this end, his time with the children should be viewed cautiously until he can demonstrate sustainable change and maintenance.”

10. The family consultant could not endorse the father’s application to spend overnight time with the children at this stage.  She noted that he exposed the children to unacceptable behaviours and that he did not yet have appropriate and secure accommodation.  She said at paragraph 47 of the Family Report:-

    “… His current accommodation requires that the children use public toilets and shower facilities at night, which is not a safe or acceptable option.  It will be incumbent on Mr Thackeray to access independent accommodation or a unit in the caravan park with its own bathroom facilities.”

11. She further recommended that weeknight time, as proposed by the father, would be unsettling for the children at this time, and place an extra burden on the mother who was currently responsible for all the transporting and changeover arrangements.

12. The family consultant recommended that the children remain living with their mother and spend time with their father at times that I shall provide for in the orders the Court makes on this application.  The Court shall not make an order for the father to attend an anger management course.  The mother’s evidence was that the father had never laid a hand on her and domestic violence did not appear to be an issue between these parties.  The issue was the father’s current mental health functioning, and it is that which needs to be addressed.  Furthermore, each of the parties will attend a post-separation parenting program to further assist them in their discussions concerning the care of their children.

Other Evidence

1. The mother lives with the children in (omitted).  The children attend (omitted) Primary School where X is in Grade 4 and Y is in her preparatory year.  They spend regular time with their father which occurs at (omitted) where their father lives.  The time X and Y spend with their father presently occurs mostly at the caravan park itself as the father does not have a car nor a current licence, and reported to the family consultant that he had limited finances for other activities.  He in fact is in receipt of a disability pension of approximately $470 a fortnight.  From that, $40 a fortnight is taken for child support payments leaving him with $430 a fortnight, less $210 a fortnight for his rent in the caravan park leaving him with $220 a fortnight or $110 a week on which to live.  This amount is further reduced after his payment of power bills at the caravan park to $70 a week.  From that he is required to pay for his medical expenses, public transport expenses, food and the other necessities of life.  He agreed that he would have about $7.00 a day to spend on food.  The father says that when the children are with him, he provides them with two minute noodles, toast and pasta and otherwise food that is provided by the mother for the children’s time spent with him.  When he commenced living in the caravan park he was in a friend’s caravan which he agreed was quite “disgusting”, as described by the mother.  The mother felt that caravan was a place where the children could not be taken to, and enjoy spending time with their father, and accordingly she purchased for the father a second‑hand caravan so that he may have a place in which he could spend time with the children, and a place where the children would be happy to spend time with him.  The father is about to take possession of the parties’ only asset at the end of their marriage being a motor vehicle which was registered in the mother’s name and under finance in the father’s name.  The mother has now signed the necessary documentation to transfer registration of that vehicle to the father, and once he regains his licence, he will have a car available to him. However, he will be required to meet the ongoing financial commitments relating to the car, and in his present financial state, that does not seem possible. 

2. The mother is concerned as to the living conditions of the father and the emotional welfare of the children.  She is concerned that the father has locked the children in the caravan whilst he has visited friends nearby in the caravan park.  Even if this is for a short period of time, she is concerned about the children’s safety.  She is concerned that Y is a diagnosed asthmatic and that the father is smoking in the caravan.  She has provided Y with preventative medicine in the morning and in the evenings and Y has a puffer in her bag with her at all times.  Nevertheless, the mother requested of the father that he stop smoking in the small confines which are the caravan.  At trial the father agreed.

3. The father gave evidence that he said to the children he would end his life and be living with (omitted), being the deceased paternal grandmother, which frightened the children.  He denied that he had said that to them some four weeks ago as claimed by the mother, but admitted that he had made those remarks some four or five months ago.  These remarks on either party’s evidence followed his assessment by Dr D and cannot be given any expert consideration because the father has not put before the Court any evidence from his treating general practitioner, nor the counsellor whom he has seen on a regular basis.  They are concerning.

Consideration

1. It is clearly beneficial for the children to have a meaningful relationship with each of their parents.  They love them both and wish to spend time with them.  The interim Intervention Order taken out against the father by the mother in September 2012 was founded on the father’s mental health functioning, contributing to the exposure of the children to potential family violence.  The mother withdrew her application subsequently.

2. The father’s mental health has impacted on the children’s emotional well-being, and there is a risk to the children of physical and psychological harm in being in the care of the father for any sustained period of time.  His current accommodation is inappropriate for an overnight period of time spent with to occur, and the father’s chaotic lifestyle and comments to the children put them at risk of psychological harm. 

3. In looking to the additional considerations required to be canvassed by it pursuant to s.60CC(3) of the Act, the Court notes that both children, whilst still young, indicate that they wish to spend time with their father and were observed to have a close relationship with him. They are dependent on their mother as their primary caregiver and primary attachment figure, and are supported by her in spending time with their father, so long as it is in a safe and emotionally advantageous environment. The mother has ably prioritised the children’s physical needs and emotional needs.

4. It is the mother who maintains the children whilst the father has a complete inability to do so.  His inability extends to not being in a position to feed them at times. He has also said to the mother on one occasion that he was not taking his antidepressant medication because he could not afford to buy it.

5. The children have a good relationship with the mother’s extended family and with the father’s sister.  The mother’s genuine proposal that the father’s time spent with the children be reassessed at a later stage when the father has gained secure and appropriate accommodation for the children, and has further stabilised his mental health functioning to ensure that the children are safe whilst in his care, promotes the children’s best interests.

6. The father continues to discuss his health and emotional state with the children.  In doing so, he causes them to be distressed and anxious.  After he said to the children words to the effect that, “he was going to live with (omitted)” the mother asked X if she was alright.  She responded words to the effect, “Yes, but I’m not going to have a dad anymore because he is going to try and kill himself.”  Later that evening, Y complained that she had “waves in her chest and her heart beating fast.”  The mother took the child to the doctor the next day and was advised that Y could be suffering from anxiety.

7. The mother has always been responsible for driving the girls to see their father.  She has ensured that all meals, snacks and drinks are brought with the girls for their visits to their father. On Friday evenings before they see him, they have dinner and then the children are dropped off at their father’s home.  The mother has given the father coins for his electricity metre (as it is coin fed) to ensure that the caravan is warm. She has purchased various supplies so the children are more comfortable on their visits with their father.  She does not believe, however, that the accommodation is appropriate for two young girls to spend overnight time. 

8. It is clear the mother is genuinely worried about the father’s emotional well-being.  She is also concerned with the children’s emotional well-being when the father continually discusses his emotional and health issues with them.  In the event the father does obtain suitable accommodation, it is clearly the mother’s intention, provided his health is stable, to increase the time spent between the girls and their father to the point where they are spending overnight time with him.  She acknowledges that they both love their father and have a close relationship with him.  She does not wish to limit his time or impact on the girls’ relationship with their father. She is a highly functioning and capable mother very much attuned to the children’s, and father’s, needs. There is much (for the father) to be grateful to her for in her active support of his relationship with the children. She is very inclusive of him in their lives. The Court will make orders as sought by the mother.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  16 August 2013