Toft and Toft - [2009] FMCAfam 659

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TOFT & TOFT

[2009] FMCAfam 659

FAMILY LAW – Parenting – final orders – allegations of drug abuse and family violence – children living with husband – wife refusing to see children in contact centre – best interests of the children.

Family Law Act 1975, ss.60CA, 60CC, 60CC(2), 60CC(3), 60CC(4), 61DA, 61DA(1), 61DA(2), 64B, 65DAA, 65DAA(1), 65DAA(2)

Applicant:

MR TOFT

Respondent:

MS TOFT

File Number:

MLC 5739 of 2008

Judgment of:

Monahan FM

Hearing date:

15 June 2009

Date of Last Submission:

16 June 2009

Delivered at:

Melbourne

Delivered on:

28 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr Leeton

Solicitors for the Applicant:

David Stagg Tonkin & Company

Counsel for the Respondent:

Mr Hoult

Solicitors for the Respondent:

Hartleys Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Spehr

Solicitors for the Independent Children’s Lawyer:

Forster & Associates Lawyers

THE COURT ORDERS THAT:

The husband have sole parental responsibility for the children, [X] born in 2001, [Y] born in 2003 and [Z] born in 2004 (“the children”).
The children live with the husband.
The children spend time with the wife:
(a)at a Children’s Contact Service (“the Service”) to be forthwith nominated by the Independent Children’s Lawyer. The length and frequency of this time is to be entirely at the discretion of the Service but the Service is requested if possible to schedule it as requested by the wife. The husband is to ensure that the children are taken to such contact as is arranged; and
(b)at such other times as the parties may agree but in that event the wife’s time with the children be supervised by a person agreed to in writing in advance by the husband.
The children communicate with the wife:
(a)by telephone at times agreed between the parties or at times requested by the children, with the husband to encourage and facilitate the children to initiate the telephone calls;
(b)by cards and/ or letters; and
(c)subject to agreement between the parties, by other forms of electronic communication such as Email, Webcam or Skype.
Each of the parties is required to:
(a)advise and keep the other advised of their current residential address and telephone number;
(b)advise and keep the other advised of any medical or health issue suffered or experienced by the children;
(c)authorise the children’s school(s) to provide school reports, photograph order forms, memoranda and like documents to the wife; and
(d)keep one another informed about the children’s activities, travel, education and development.
The parties, their servants and agents be and are hereby restrained from denigrating or abusing the other to or in the presence or hearing of the children.
Following the nomination of the Service pursuant to Order 3(a) herein, the appointment of the Independent Children's Lawyer be discharged.
All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 5739 of 2008

MR TOFT

Applicant

And

MS TOFT

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant MR TOFT (“the husband”) and the respondent MS TOFT (“the wife”) are the parents of three children; namely [X] born in 2001 (“[X]”, also referred to as “[X]” within evidence and this judgment), [Y] born in 2003 (“[Y]”) and [Z] born in 2004 (“[Z]”) (together “the children”).
The husband is seeking various parenting orders under the Family Law Act 1975 (“the Act”), including an order that the three children of the marriage live with him and spend time and communicate with the wife on a supervised basis. The application is opposed by the wife who is seeking different parenting orders, including an order that the children of the marriage live with her and spend time and communicate with husband.
The matter first came before his Honour Federal Magistrate Walters on 9 July 2008 and on that occasion his Honour made the following orders:
“IT IS ORDERED THAT:
1. Pursuant to section 91B of the Family Law Act 1975, the Department of Human Services Victoria intervene in these proceedings.
IT IS ORDERED THAT:
2. Upon request, the Court do provide to the said Department copies of all documentation relevant to the proceedings before the Court to enable the said Department to consider the request to intervene in the proceedings.
3. Until further order, the children of the marriage [X] born in 2001, [Y] born in 2003 and [Z] born in 2004 live with the husband.
4. Until further order, the said children spend time and communicate with the wife as agreed.
5. Pursuant to s 68L(2) of the Family Law Act 1975, the interests of the said children be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation, as a matter of urgency.
6. Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.
7. Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.
8. Pursuant to section 13C(1)(b) of the Family Law Act, the parties attend family dispute resolution with a family dispute resolution practitioner to help them resolve their disputes with each other – such family dispute resolution to occur at an organisation as nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia.
9. Until further order, the husband, his servants and agents be and are hereby restrained by injunction from:
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the wife; and
(b) discussing these proceedings,
to, with or in the presence or hearing of the said children (or any of them), and from permitting any other person to do so.
10. Until further order, the wife, her servants and agents be and are hereby restrained by injunction from:
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the husband; and
(b) discussing these proceedings,
to, with or in the presence or hearing of the said children (or any of them), and from permitting any other person to do so.
11. For 24 hours immediately prior to the commencement of any time spent with the said children (including any period during which the said children live with her), and during all such time spent, the wife be restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of, alcohol and/or any legal or illegal drug or substance, save and except for:
(a) any legal medication prescribed for the wife by a registered medical practitioner, and taken or used by the wife strictly in accordance with such prescription; and
(b) any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets, and taken or used by the wife strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
12. Until further order, both parties, their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove the said children from the Commonwealth of Australia.
13. The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said children’s names on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the children’s names on the Watch list until further order of this Court.
14. A Recovery Order in the usual form do issue and remain on the Court file pending the return of the child [X] born in 2001 to the husband by 10.00 a.m. on 10 July 2008.
15. The solicitors for the husband do cause the wife to be notified by SMS text message of the orders made this day, the adjourned hearing date and an address at which service copies of the application and supporting documents can be obtained.
16. The matter otherwise be adjourned to 8 August 2008 at 9.30 a.m. for mention only.
AND THE COURT NOTES THAT:
17. Pursuant to s 65DA(2) & 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.”
The matter next came before Walters FM on 8 August 2008 and on that occasion his Honour ordered that the parties undergo supervised drug screen testing and that the husband and wife make the necessary applications to such children’s contact centres as nominated by the Independent Children’s Lawyer. In addition, his Honour ordered the wife to file and serve a response and affidavit.
The matter again came before Walters FM on 18 September 2008 and on that occasion his Honour made the following orders:
“IT IS ORDERED THAT:
1. Until further order, the children [X] [sic] MR TOFTborn in 2001, [Y] born in 2003 and [Z] born in 2004 spend time with the wife from 3.00 p.m. to 5.00 p.m. or other times as agreed each Sunday at [park omitted], commencing 21 September 2008.
2. Until further order, the said children’s time with the wife be supervised by the husband.”
In addition, his Honour ordered that a family report be prepared.

His Honour again restrained the parties from denigrating the other party in the presence of the children and from discussing the proceedings with the children. His Honour also adjourned the matter for final hearing on 11 December 2008 and in addition made various trial directions.
The matter returned before Walters FM on 24 September 2008 and on that occasion his Honour issued a recovery order for the children in favour of the husband and discharged paragraphs 1 and 2 of his orders of 18 September 2008. Consequently, his Honour made new orders regarding the care arrangements for the children. His Honour ordered:
“4. Until further order, the mother not spend time with the Children (or any of them) otherwise than on a strictly supervised basis at a contact centre nominated by the independent children’s lawyer and, in that respect, paragraph 2 of the orders made on 8 August 2008 do remain in full force and effect.
5. The mother have telephone contact with the Children each Wednesday and Sunday between the hours of 6.00 p.m. and 6.30 p.m., such contact to be strictly supervised at all times by the father or his nominee.”
His Honour, Walters FM again heard the matter on 23 October 2008 and on that occasion his Honour ordered that the wife undergo a psychiatric assessment with a psychiatrist nominated by the Independent Children’s Lawyer.
The matter came before me on 25 November 2008 and on that occasion I adjourned the matter for mention on 4 December 2008. All parties attended at the subsequent mention and, in addition, Ms Carter of Counsel appeared for the Department of Human Services (“DHS”) as ‘a friend of the Court’. On that occasion I was advised by Ms Carter that DHS would not be seeking to intervene in the matter but that they had advised the parties that it strongly supported the position that the children live with the husband and spend time with the wife in a supervised location. The Independent Children’s Lawyer also advised me that, to date, the wife had not undertaken the required psychiatric assessment and, in addition, a family report would not be available for the final hearing. Although I expressed concern that the matter may not be ready for final hearing, all parties requested that the final hearing listed for 11 December 2008 duly proceed.
The final hearing did not proceed on 11 December 2008. On that occasion the wife was granted an adjournment ostensibly to enable her to undertake a psychiatric assessment. Consequently a further psychiatric assessment order was made. I also ordered that all other existing orders remain in force and that the matter be relisted for a final hearing commencing on 15 June 2009. I also made orders requiring the wife to register the births of [Y] and [Z].
The psychiatric assessment of the wife was duly undertaken by Dr D on 3 February 2009.
As a consequence of the wife failing to sign the necessary applications to register the births of [Y] and [Z], the Registrar of this Court did so on 25 March 2009.
The final hearing did proceed on 15 June 2009 and was conducted over two days. All parties including the Independent Children’s Lawyer were legally represented by Counsel at the final hearing.

Background

The applicant husband was born in 1970 and is currently aged 39 years. The respondent wife was born in 1967 and is currently aged 42 years.
The parties commenced a relationship in or around 1997 and commenced cohabitation in or around 1999-2000. The parties subsequently married on 23 December 2000. As previously stated, their children [X], [Y] and [Z] were born in 2001, 2003 and 2004 respectively. The parties separated on or about August 2007. Following separation neither party has re-partnered.
The wife has four children from a previous marriage (who did not form part of these proceedings), namely [E] born in 1993, [J] born in 1992, [S] born in 1989 and [M] born in 1987. [E], [J] and [S] currently reside with the wife and [M] is in the [defence force and resides with the wife when he is on leave from the [defence force].

Proposals of the parties

In his Further Amended Initiating Application (Family Law) filed

11 June 2009 (and re-stated in his Further Outline of Case Document dated 11 June 2009 ) the husband sought the following orders:
“1. That the father have the sole parental responsibility for the welfare of the children of the marriage namely [X] born in 2001, [Y] born in 2003 and [Z] born in 2004.
2. That the children of the marriage, live with the father.
3. That the children spend time with and communicate with their mother as deemed appropriate by this Honourable Court, but that all such time be strictly supervised.
4. Such further or other orders as this Honourable Court deem fit.”
In her Response filed 21 October 2008 (and re-stated in her Case Outline and Summary filed 12 June 2009) the wife sought the following orders:
“1. That the child [sic] [children] [X] [sic] MR TOFT(born in 2001), [Y] (born in 2003), and [Z] (born in 2004) live with the Wife.
2 The parents have equal shared parental responsibility for the child [sic] [children].
3. That the Husband spend time and communicate with the children as follows:
a From after school Friday until before school Monday every alternate weekend;
b. Half the school holidays and in default of agreement, the first half;
c. From 2.00pm Christmas Day until 2.00pm Boxing Day in 2008 and each alternate year thereafter;
d. From 2.00pm Christmas Eve until 2.00pm Christmas Day in 2009 and each alternate year thereafter;
e. From 5.00pm the night before Father’s Day until 5.00pm on Father’s Day.
f. From 5.00pm Easter Thursday until 5.00pm Easter Saturday in 2009 and each alternate year thereafter;
g. From 5.00pm Easter Saturday until 5.00pm Easter Monday in 2010 and each alternate year thereafter;
h. For a minimum of four hours on the child’s [sic] [children’s] birthday[s] and Husband’s birthday if either should fall on a weekend, and a minimum of two hours should such dates fall on a school day.
c. Any other times as agreed between the parties.
4. The Husband’s time with the children to be suspended from 5.00pm the night before Mother’s Day until 5.00pm on Mother’s Day.
5. For the purposes of changeover pursuant to paragraph 3, the Husband or his agent will collect the child at the Wife’s residence at the commencement of spending time, and the Wife’s or her agent will collect the child at the Husband’s residence at the conclusion of him spending time.
6. The parties each be entitled to obtain copies of all preschool/school photographs, preschool/school reports, newsletters, notices, information pertaining to the child’s education, [sic] progress, preschool/school activities, parent-teacher interviews, extra-curricular events and any other circulars as may be available from the preschool/school and that each parent be entitled to attend any preschool/school activities, preschool/school concerts, sporting events, parent-teacher interviews or other functions ordinarily attended by parents.
7. Any such further or other Orders as deemed appropriate by this Honourable Court.”

Psychiatric Report of Dr D

As previously mentioned, on 3 February 2009 Dr D completed a psychiatric assessment of the wife. His report was annexed to his affidavit sworn on 12 June 2009 and filed by the Independent Children’s Lawyer the same day.
Dr D’s report is comprehensive. On page 2 he provides the following “mental state assessment” of the wife:
“Ms Toft presented as a neatly groomed and smartly attired woman who engaged readily and mostly openly. She was selectively guarded and mildly avoidant in discussing some elements of her drug history but this partly related to allegations that her ex-husband Mr Toft was previously involved in drug trafficking. She appeared vague and unreliable in her memory for specific information, including her psychiatric history. She maintained a moderately intense but friendly manner. She periodically appeared intensely anguished and sad during the assessment, but mostly during times that she reflected upon the separation from her young children, particularly her daughter [Z]. She cried and briefly wept. These episodes of relative lability were mostly promptly contained but heightened in intensity. She spoke openly in a very mildly disinhibited manner as exemplified by her readiness to disclose specific details of her sexual difficulties. Her speech was rapid and mildly pressured but coherent. Her thoughts were relayed in a mildly discursive and disjointed manner. She digressed at times leading to some difficulty in following her train of thought. Ms Toft communicated a sense of mildly heightened self-esteem that was incongruent to her circumstances and life history. She denied having experienced symptoms suggestive of mania or depression. She was inconsistent and distinctly vague in recalling specific details of her psychiatric history. She alluded to having been treated for Bipolar Disorder but she then retracted that view and instead reported the diagnosis to have only arisen from Mr Toft. She acknowledged being medicated at some time in 2004 or 2005 with a medication for Bipolar Disorder. She lacked any insight into the potential of any underlying mental illness. She attributed her heightened emotions to her personality style of being “passionate” when situations made her angry. She volunteered that she continued to smoke marijuana. She did not impress as being motivated to modify her ongoing use.”
Dr D goes on to provide the wife’s “relevant personal and psychiatric history” on pages 2 through 5 of his report. The following passages relating to the period of her life prior to her relationship with the husband are of particular note:
“… Her early development was normal. She experienced no learning difficulties. Her parents separated when she was aged 10. Her mother remarried. She described a particularly troubled childhood ... Her father was alcohol dependent and violent towards her mother ... Her father was physically abusive. She explained that she was subject to abuse, unlike her siblings, because she “always had something to say”. She denied experiencing any problems as a consequence of the abuse. She described herself as having a “strong mind” and whilst she “didn’t bury it was strong enough” to cope.
… As an adult she resented her mother’s absence and selfishness for leaving her children behind. She expressed markedly ambivalent feeling for her mother; whilst she was deeply resentful she also described her as a “good lady.”
As an 8 year-old she was raped by her uncle. Her uncle attempted to sexually assault her on a further occasion when she was older. She reported to “not remember much” and was not significantly affected at the time. She “used to get reminders” but she had not experienced symptoms of PTSD. She subsequently experienced “sexual problems” as a young adult she was unable to have “an orgasm with a penis until age 26.”
… Ms Toft fell pregnant aged 19 to her boyfriend at the time. She was encouraged to have an abortion by her grandmother. She met her first husband one month after having the abortion. She married 5 weeks after meeting. They were married for two years and had two children, [M] and [S]. Her husband was an alcoholic and physically abusive. She raised her two sons independently without any support of her husband. She declined to seek relationships for two years having decided that “all men are pigs”. She then met Mr S, the father of [J] and [E]. They had previously known each other. Their relationship ended when Mr S resumed drinking and became violent. [E] was aged one when they separated.”

Dr D thereafter provides the wife’s description of her relationship with the husband:[1]
[1] Psychiatric Report of the wife by Dr D, pages 2-4, attached as Annexure “A” to the affidavit of Dr D sworn and filed 12 June 2009.
“… She later met Mr Toft. They had an “on-off” relationship for 2 years. She decided to move to Melbourne to be with Mr Toft. [M] [sic] and [S] stayed with their father. She came to Melbourne with her daughters.
Ms Toft reported that Mr Toft barred her from telling anyone, including his parents, that she had two sons. They lived with his parents in a bungalow. When [Mr Toft] “decided to have children” she had her tubal ligation reversed. Mr Toft’s parents adored her daughters. His father died shortly before she fell pregnant with [X]. Ms Toft found Mr Toft’s mother intrusive. When [X] was aged 3 months he was admitted to the RCH for treatment of meningococcal septicaemia. She moved out with

Mr Toft into a caravan.
Ms Toft described Mr Toft as a “wolf in lambs clothing”. She reported to have been subject to physical abuse from Mr Toft. On one occasion her wrist was broken. On another occasion she had a knife thrown at her ankle. She reported that Mr Toft “did worse things to me”. Ms Toft found it particularly difficult to provide further examples of physical abuse. She described one further incident when she was repetitively beaten. [Y], aged 4, after witnessing the abuse, allegedly said “it is alright mum, when Dad comes back I’ll put water on the floor so he slips over and I can stab him”. She became increasingly concerned that the children were going to be affected by the physical abuse. They separated in September 2007. She reported that the kids were “stolen”. She resented Mr Toft’s influence over her emotionally. She stated “I loved this mongrel but I know I can’t love him”. She particularly resented Mr Toft’s manipulative qualities. She accused him of being “evil” because he had orchestrated taking the children in a “premeditated plan”[.] She accused him of “headfucking” because after the court case on September 17^th 2008, they had sexual intercourse in the car. At the time she felt like she “still loved him but not anymore”. Ms Toft had an access visit with the children, except for [Z], her “baby daughter”, in August 2008 but not since. She had telephone contact twice per week.”
In relation to her consumption of marijuana, Dr D states on page 4 of his report:
“Ms Toft initially smoked marijuana in her early 20’s. She remarked on [two] separate occasions “I have rolled a few joints in my time, that is my thing”. She also “loved cigarettes”. She reported to continue to smoke marijuana on a variable but sometimes daily basis. She smoked up to three marijuana joints per day. The longest period she had maintained abstinence is a few years. On the day of assessment she reported to have not smoked for four days. Ms Toft denied using any other illicit drugs in the past or currently. She denied that she had used heroin or amphetamines as alleged by Mr Toft. She stated “I don’t even know what Ice is”. Ms Toft was notable [sic] [notably] guarded when discussing her drug use. She reported that Mr Toft was a “bit of a lad who used to run amphetamines to Western Australia”. She denied ever having a problem with alcohol; she only consumed alcohol in moderation in social settings.”
Dr D then goes on to state that the wife “provided a starkly vague and incomplete psychiatric history”:[2]
“… She stated that she was admitted to the [K] Hospital in 2004 or 2005 after Mr Toft broke her wrist in an act of domestic violence. She stated that “someone reported it to police” but “the charges were dropped”. Whilst being admitted she was commenced on the mood stabilising medication Sodium Valproate (Epilim) because she was “distraught” and “crying for many days”. She stated that she was reviewed by a doctor through the [K] Hospital and [K] Community Health Services. She stated “the doctor suggested maybe I was Bipolar”. She then retracted that a doctor had considered the diagnosis of Bipolar Disorder and that the diagnosis had been made by Mr Toft from his own reading on the Internet. She remained on Sodium Valproate for 1 or 2 months but she could not tolerate side-effects including nausea and anorexia. She had also been prescribed an antidepressant Lexapro (Escitalopram) by a GP, Dr M, in [F], Melbourne.
Ms Toft denied a history consistent with mania or depression that would suggest the diagnosis of Bipolar Disorder to be accurate. She denied a history of self-harm other that when aged 16 she consumed tablets after she was punched in the face by her father. She denied ever being definitively being formally diagnosed with a mental illness. She had not been admitted to a psychiatric inpatient unit. She acknowledged that she was “passionate about thing that make me angry” but she was able to control her emotions.
Ms Toft stated that Mr Toft had blamed all of their problems on her marijuana use. She had not perceived her use of marijuana to be problematic. She had attended Moreland Hall on a single occasion for a meeting. She had not received any counselling. After the meeting she ceased smoking for a “while”.”
[2] Psychiatric Report of the wife by Dr D, pages 4-5, attached as Annexure “A” to the affidavit of Dr D sworn and filed 12 June 2009.
Dr D concludes his report on pages 5 to 7 with the following “opinion and recommendations”:
“Ms Toft is a 41 year-old woman who presented on mental state examination in the assessment with features that raised the suspicion she has an underlying mental illness, most likely a mood disorder — Bipolar Affective Disorder, but a differential diagnosis includes a Marijuana Induced Mood Disorder. The most prominent symptom on assessment included a labile and expansive mood. There are often significant limitations in assessing an individual cross-sectionally for a couple of hours as it may not encapsulate the breadth of mental state variation that may be seen over a more extended period and in different environments. Ms Toft can’t be definitively diagnosed based on this assessment alone and therefore warrants a more longitudinal assessment. Furthermore, the material provided, including the clinical files from the [K] Hospital are limited in utility. Ms Toft was particularly vague in recalling or providing details of her psychiatric history. She appears to have been possibly previously diagnosed with a mood disorder given the medication she had been previously prescribed but there is not clinical information to verify the indication for this treatment.
Ms Toft has a developmental history highlighted by significant parental emotional neglect and physical abuse from her alcohol dependent father. She was also subject to witnessing considerable domestic violence. Additionally, she was sexually abused as a young child. The combination of these attachment disturbances and abuses has likely contributed to a moulding of her personality functioning as a young adult. She described herself as a forthright and reactive young girl who stood up to her father. She attributed her perceived ‘emotionality’ to her passionate nature. It is quite possible that Ms Toft is a feisty and reactive woman who openly displays her emotions wit [sic] [with] features of a ‘hyperthymic personality’ but there appears to be signs of a qualitative greater range and intensity of emotions than what would normally be purely attributable to one’s personality. She denied a history of Post Traumatic Stress Disorder attributable to the sexual and physical abuse.
Ms Toft has a history of being involved in abusive relationships. This pattern may be a product of her early life history of abuse and her predisposition towards seeking relationships that repeat the experience she was exposed to as a child.
Ms Toft has a significant history of Marijuana Dependence. She minimised the significance of her ongoing but reported intermittent use. She denied that marijuana created any functional impairment. She denied other illicit drug use. I note that Mr Toft alleges more substantial drug use. Ms Toft claimed that she did not use drugs other than marijuana and made the questionable statement that had never head [sic] [heard] of Ice (methamphetamine). Conversely she alleged that Mr Toft had been a previous drug courier of amphetamines- Ms Toft’s actual use of drugs is unclear. It is entirely possible that elements of her mental state impairment are significantly attributable to the psychogenic effects of marijuana. Therefore, given these concerns, she warrants further drug analysis and counselling. She may prove to be resistant to gaining benefits from counselling as she appeared to be completely unmotivated to alter her pattern of use.
Ms Toft presented with some lability of affect in the assessment. She cried and wept when she reflected upon her children. Such emotional change can be certainly appropriate and understandable but the abrupt nature of the change and quality of her affect raised suspicions she has an underlying mood disorder. Furthermore, she was mildly disorganised in thought form.
Ms Toft denied a history of mental illness but she was vague and inconsistent. She reported that she had been commenced on a Bipolar Disorder medication following an assault from Mr Toft resulting in a fractured wrist. She recalled being treated at the [K] Hospital. The clinical notes do not refer to a presentation of [a] fractured wrist. Ms Toft seems to have confused this injury to another presentation on 14 April 2005 when she had an injured foot. She alleged that Mr Toft threw a knife at her ankle. I note that the clinical notes refer to a lacerated foot and not an injury sustained in the act of domestic violence. I note that Ms Toft was admitted to the [K] Hospital on 3 September 2005 for a respiratory infection. Her medication chart includes the psychotropic medications Epilim (Sodium Valproate) and Lexapro (Escitalopram). It is not clear from the clinical notes when these medications were commenced. Epilim is a mood stabilising medication specifically used to manage Bipolar Disorder. Ms Toft was prescribed 1500mg of Epilim; a therapeutic dose that would normally have been titrated over a period of time and not an introductory dose. Lexapro is an antidepressant medication that is often used in combination with a mood stabilising medication. Ms Toft denied experiencing symptoms consistent with either mania or depression. Presumably she has been prescribed these medications due to a diagnosis of mood instability. Ms Toft could not provide details of the relevant doctor(s) involved in previously assessing and treating her.
I note that Mr Toft has provided a collection of photographs of Ms Toft’s residence. These photographs are clearly alarming given the apparent poor attention to basic hygiene. These photographs were not provided at the time of the assessment and as such were not shown to Ms Toft for comment. It would be interesting and possibly enlightening to obtain Ms Toft’s explanation for these photographs. This level of hygiene neglect is not specifically diagnostic of mental illness but may reflect a range of possible diagnoses. I note that Mr Toft raises a range of other concerns relating to Ms Toft’s limitations in providing adequate care for the children. Ms Toft did not volunteer any reasons for concerns regarding her parenting capacity. I note that her son [X] missed an extraordinary number of school days, mostly for ‘unexplained’ or ‘parent choice’ reasons. Ms Toft did not volunteer any context for her son’s school absence.
Overall, there is enough evidence to raise significant concerns that Ms Toft has a mental health condition that likely significantly interferes with her parenting capacity. As stated, the precise nature and quality of this mental condition is uncertain and there may be a combination of personality and mental illness variables including a mood disorder and/ or a drug induced mood disorder. Until there is greater clarity to this condition(s) and an opportunity for Ms Toft to engage and respond to treatment then I would be reticent to recommend any substantial change in current arrangements. It is unclear of [sic] [if] she is well enough to have supervised contact with her children. Ms Toft presented as deeply distressed with the lack of contact with her children and is clearly keen to foster a relationship. Until she adopts greater insight and engages in appropriate treatment her independent parenting capacity is limited. I would recommend that she be referred to an Area Mental Health Service and Drug and Alcohol Service for further assessment and treatment.” (All emphasis that of Dr D)

Evidence of the parties

Both parties provided the Court with affidavit and oral evidence. Both parties were also cross-examined.
Dr D was not required by any of the parties to give any oral evidence or be cross-examined in relation to his report.

Applicant husband’s evidence

The following documents were relied upon by the husband:
·Further Amended Initiating Application (Family Law) filed 11 June 2009;
·Husband’s Affidavit sworn 23 June 2008 and filed 25 June 2008 (“his first affidavit”);
·Husband’s Affidavit sworn 4 July 2008 and filed 7 July 2008 (“his second affidavit”);
·Husband’s Affidavit sworn 6 August 2008 and filed 7 August 2008 (“his third affidavit”);
·
Husband’s Affidavit sworn 23 September 2008 and filed

24 September 2008 (“his fourth affidavit”);
·
Husband’s Affidavit sworn 28 November 2008 and filed

1 December 2008 (“his fifth affidavit”);
·
Husband’s Further Trial Affidavit sworn 10 June 2009 and filed

11 June 2009 (“his trial affidavit”); and
·Husband’s Further Outline of Case Document filed 11 June 2009.
The husband also relied on the Affidavit of Ms F sworn 5 December 2008 and filed 10 December 2008. Ms F is the husband’s sister and she and her family currently reside with the husband and the children. Ms F obtained a 12 month intervention order against the wife in March 2008. Ms F was not required for the purposes of cross examination.

Respondent wife’s evidence

The following documents were relied upon by the wife in respect of her response:
·Response filed 21 October 2008;
·Wife’s Affidavit sworn 20 October 2008 and filed 21 October 2008 (“her first affidavit”);
·Wife’s Affidavit sworn 11 June 2009 and filed 12 June 2009 (“her second affidavit”);
·Wife’s Case Outline & Summary filed 12 June 2009.

Independent Children’s Lawyer’s evidence

The following documents were relied upon by the Independent Children’s Lawyer:
·Affidavit of single expert witness, Dr D sworn and filed on 12 June 2009;
·
Independent Children’s Lawyer’s Affidavit sworn and filed on

12 June 2009 (“Independent Children’s Lawyer’s first affidavit”);
·
Independent Children’s Lawyer’s Affidavit sworn and filed on

12 June 2009 (“Independent Children’s Lawyer’s second affidavit”); and
·Outline of Case document filed 15 June 2009.

The law

Parenting orders are defined in section 64B of the Family Law Act 1975 (“the Act”). Parenting orders deal with where the child is to live, the time the child is to spend with another person or otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act makes it clear that for the purposes of making a parenting order the Court must regard the best interests of the child (or the children in this case) as the paramount consideration.
Section 61DA(1) incorporates a presumption that the Court is required to consider when making a parenting order. That is, the Court must apply a presumption that it is in the best interests of the children concerned for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in child abuse or family violence.[3] Moreover, the presumption may be rebutted by satisfactory evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
[3] Section 61DA(2).
The Court is also required under section 65DAA of the Act to consider whether the children’s best interests would be served by making an order that they spend equal time,[4] or alternatively substantial and significant time,[5] with each of their parents.
[4] Section 65 DAA(1).
[5] Section 65 DAA(2).
As previously indicated, the husband is seeking an order that he be granted sole parental responsibility of the children. In contrast, the wife is seeking an order that she and the husband have equal shared parental responsibility of the children. Both parents are seeking orders that the children live with him or her and that the children spend defined time with the other parent. The husband seeks an order that the children’s time with the wife be strictly supervised. The Independent Children’s Lawyer (and DHS) support the retention of the status quo (i.e. the children living with the husband and spending time with the wife in a professionally supervised environment).
Clearly, the Court is under an obligation to make parenting orders that it determines are in the best interests of the children. The issues that arise for this purpose are the primary and secondary considerations that the Court must take into account under section 60CC of the Act. What is considered to be in the best interests of the child in these types of cases necessarily depends on the particular circumstances in each case. In each case different circumstances require different resolutions.
The Court will now turn to consideration of the factors in section 60CC(2), (3) and (4) of the Act in the context of this case.
The primary considerations are set out in section 60CC(2).

Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child's parents; and

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

There is no evidence to suggest that the children would not benefit from a meaningful relationship with both the husband and the wife. That having been said, the two elder children ([X] and [Y]) have not spent any face-to-face time with the wife since they were recovered from her in September 2008 and the younger child ([Z]) has not spend any time with the wife since May 2008.[6] The wife acknowledged in her evidence that it was her decision not to spend supervised time with the children in a contact centre pursuant to the current interim orders.[7] Under cross-examination from Ms Spehr the wife claimed that her decision in not seeing the children in a contact centre was about the wife “standing up for herself”.[8] She went on to acknowledge that, with the benefit of hindsight:
“… it probably wasn't the right way to go about it, but I didn't know any other way and I didn't understand the legal system.”[9]
The wife went on to state that her decision was based on her belief that it “would hurt my children more to see me for two hours a fortnight”.[10] She believed that the children would become distressed following such limited visits. The wife reiterated her position on several occasions.[11]
[6] Transcript, 16 June 2009, page 83, lines 23-24.
[7] Ibid, page 81, lines 6-10.
[8] Ibid, page 82, line 1.
[9] Ibid, lines 1-4.
[10] Transcript, 16 June 2009, page 83, lines 36-37.
[11] See e.g., ibid, page 94, lines 26-29.
The wife also acknowledged that she took [X] and [Y] during a contact visit in September 2008 that necessitated the recovery order being made.[12] She claimed that prior to doing so she had advised the police of her decision to take the children[13], but there was no corroborative evidence presented.
[12] Ibid, page 83, line 3.
[13] Ibid, line 4.
The Court agrees with the Independent Children’s Lawyer that while there is no suggestion that the children are at risk from physical harm from the wife, there is evidence to suggest that her behaviour has exposed, and may further expose, the children to psychological harm. The wife’s disregard of the interim parenting orders, as demonstrated by her unilateral decision to remove the elder children from the husband’s care, is most concerning. In addition, the evidence from [X]’s school records, in relation to his high level of absenteeism whilst in the wife’s care, raises concerns in relation to his educational and social development that should not be allowed to be repeated for [X], or his brother or sister.

While the Court acknowledges the wife’s view that the children may become distressed by only spending time with her under supervision, given the strength of the evidence, the submissions of the Independent Children’s Lawyer and the views of DHS, it is clear that the children’s best interests into the foreseeable future can only be served by them remaining in the care of the husband and spending time with the wife in a professionally supervised environment. That, together with telephone and written communication between the children and the wife, will be the only way a meaningful relationship will be able to develop that will be safely balanced by the need to protect these children.
The “additional considerations” are set out in section 60CC(3).

Section 60CC(3)(a): any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child's views

Given that there was no family report prepared in this matter, it was not possible to interview the children as part of that process or to have them observed in the presence of their respective parents.
That having been said, Ms Jean Forster, the Independent Children’s Lawyer (“ICL”), reported that the three children were seen by her following the release of Dr D’s psychiatric assessment of the wife.[14] While [Z] participated in the initial meeting with Ms Forster, due to her young age she was not involved in the same detailed discussions that took place between the ICL and [X] and [Y]. As a result of Dr D’s report, Ms Forster did not directly ask [X] and [Y] whether they preferred to live with their father or their mother. Ms Forster did submit the following:
“[X] and [Y] have expressed a strong wish that they spend time with their mother. They stated that the telephone calls with their mother were O.K. and that they really miss seeing her. Both boys appeared to the ICL to have the maturity and understanding to warrant sufficient weight to be placed on their expressed wishes.”[15]
[14] Outline of Case document filed by the Independent Children’s Lawyer on 15 June 2009, page 3.
[15] Ibid.
The Court agrees with this submission by the ICL.

Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and other persons …

There is no doubt that both the husband and the wife love their children. The problem in this case is that there is no current professional assessment of the children’s relationship with each of their parents. In her Outline of Case document, the ICL submitted:
“There is nothing to suggest the children did not have reasonable relationships with the wife while living with her. The children have lived with the husband for the past 11 months and [X] and [Y] have expressed to the ICL their satisfaction with the living arrangements (although this was not referred to in the context of their preferred place of residence). The children have expressed to the ICL fondness for their paternal grandmother, who lives with them, and also their aunt and uncle who live nearby and are involved in their lives. Prior to July 2008 the children lived in a household with their four older siblings. They expressed to the ICL that they missed the youngest of these children, [E], who was 15 years old.”[16]
a)While the Court believes that the ideal outcome would be for the children to have opportunities to be able to spend time and communicate with their older siblings, this is complicated by the need for [X], [Y] and [Z] to spend time with the wife in a supervised professional environment into the foreseeable future. The Court would encourage, where practicable, the children communicating with their older siblings by telephone and correspondence (i.e. cards and letters in their electronic equivalents).

Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent

[16] Outline of Case document filed by the Independent Children’s Lawyer on 15 June 2009, page 4.

The Court agrees with the submission of the ICL that both parties appear to be willing to ensure that the children have a relationship with the other parent.[17] As indicated, the Court also agrees with the ICL’s submission (and the view expressed by the DHS) that, into the foreseeable future, the children should spend time with the wife but only in a professionally supervised environment.
[17] Ibid.
The following part of the transcript is noteworthy. To ensure that I understood the wife’s position that she would not, unless ordered by a Court, spend any time with her children in a professionally supervised environment, I asked the wife the following:
“I just want to ask one other question because I'm giving you this opportunity because the independent children's lawyer asked you some specific questions about contact centres. I understand your evidence and your particular view that you don't think it's in the best interests of your children?”
“No.”
“I just want to make it very clear to you that a court like this is probably going to be reluctant to order you to do anything. Okay? It's going to say. "You can visit the children," if that was the order. For example, if he didn't provide the children the court would have issues with that. Do you understand that because that's important because part of your evidence was that you won't see them at all in that environment alternatively you would if the court ordered you to go there. Is that still your evidence? Do you understand that? I'm just trying to make it very clear to you…”
“It would hurt my children more to only see me for two hours.”[18]
I then went on to explain to the wife that the Court would not be making any order that would force her in any way to attend a contact centre and that, if an order were made for the children to spend time with the wife at a contact centre it would be a matter for the wife as to whether she wished to attend or not.[19]
[18] Transcript, 16 June 2009, page 96, lines 35-44 and page 97, lines 1-9.
[19] Ibid, page 97, lines 7-12.
In his final submissions on behalf of the husband, Mr Leeton stated:
“Your Honour, my client’s position remains as it was at the start of this trial and perhaps not surprisingly reflects pretty much entirely what the independent children's lawyer's view has been in terms of my client would love these children to maintain and develop a relationship with their mother and he is certainly not intend [sic] on closing the door to that by saying there should be no contact, despite some of the things that would happen. He is willing to support an order that the mother does see the children in the context of a contact centre.”[20]
[20] Ibid, page 103, lines 10-17.
In his final submissions on behalf of the wife, Mr Hoult stated that if the Court was of the view that the children’s best interests were served by them remaining in the care of the husband, then:
“… at least a structure be set up to afford the parties opportunity to enable the children to see their mother. Of course the other matter that relates to that is - I'm not sure that one should put an enormous weight on what someone says in the witness box when they're under an enormous pressure in such an emotional issue such as this. Can I say this, your Honour: that what my client said about it, it is at one level - someone might say to you, "It's very selfish to say, 'I don't want to go and see the children only two hours a fortnight,'" but the other side of that is one can sort of see the point my client was making and that was it's really hard for these children who have grown up with their mother and it might be terribly distressing to see her in such limited circumstances and I think if I can put it this way, your Honour, that may have been the point my client was making. In any event I don't intend to take the matters any further except to say that I explained to my client at the break what you were talking about with her. My client understands that you can’t - you can’t compel her - Saturday morning no-one is going to be there making her trot off to the supervised contact centre. However, I have explained to my client that you may make an order of that nature and it's up to her as to whether she complies or not.”[21]

Section 60CC(3)(d): 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, with whom she or he has been living

[21] Ibid, page 102, lines 13-32.

The proposals of the wife, but not that of the husband and the ICL, will result in changes to the children’s existing circumstances.
In her Outline of Case document, the ICL reported:
“The children are saddened by the total loss of their mother from their lives, and should this continue, it will no doubt be detrimental to their future well-being. The current circumstances have removed the children from their half siblings entirely.”[22]
[22] Outline of Case document filed by the Independent Children’s Lawyer on 15 June 2009, page 4.
As previously stated, while the ideal outcome would be for the children to have opportunities to be able to spend time and communicate with their older siblings, this is complicated by the need for the children's time with their mother to be in a professionally supervised environment.

Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

Apart from the issues raised by the continuing need of the children to spend time with their mother in a professionally supervised environment, there are no other relevant difficulties and expenses related to the children spending some additional time with the wife.

Section 60CC(3)(f): the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs

The Court agrees with the following submission made by the ICL, in her Outline of Case document:
“Without seeking ongoing professional assistance from the problems identified by Dr D, it appears Ms Toft is not capable of providing for the emotional and intellectual needs of the children. Mr Toft has the assistance of his mother and also his sister and her partner in providing for the needs of the children.”[23]

Section 60CC(3)(g): the maturity, sex, lifestyle and background of the child, and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

[23] Outline of Case document filed by the Independent Children’s Lawyer on 15 June 2009, page 5.

This consideration is not relevant to the present dispute.

Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child

This consideration is not relevant to the present dispute.

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

It is clear from the evidence that the husband has been the primary caregiver of the children for nearly 18 months. The Court agrees with the submission of the ICL that the husband has shown a responsible attitude to the carrying out of this role.[24] The Court has already indicated that it believes the children would be at risk if they were returned to the wife’s care or were to spend unsupervised time with her.
[24] Ibid.
While the Court does not doubt the sincerity of the wife, I am clearly concerned by the wife’s consistent failure to spend time with the children in a professionally supervised environment.

Section 60CC(3)(j): any family violence involving the child or a member of the child's family

The wife alleged some serious incidents of domestic violence perpetrated upon her by the husband.[25] The husband admitted in evidence that there were several incidents or altercations between himself and the wife.[26] He also confirmed that there was an incident when the wife’s wrist was broken following a verbal altercation between them.[27] While the wife maintains that her injuries were caused by the husband’s violence,[28] the husband maintains that she was injured while falling over and landing awkwardly on her wrist. In the absence of independent evidence it is difficult for the Court to determine who is telling the truth with respect to this particular incident. It is probable, however, that one or more of these altercations, verbal or otherwise, were in the presence of all or some of the children.
[25] See the wife’s first affidavit, in particular paragraphs 30-33.
[26] Transcript, 15 June 2009, page 17, lines 35-36.
[27] Ibid, line 41.
[28] Wife’s first affidavit, paragraph 33.
The wife also alleges that she has had several sexual encounters with the husband since separation, and more interestingly, since these proceedings commenced.[29] Although these encounters are denied by the husband, there is no allegation raised by the wife that these encounters were not consensual or were somehow observed by the children.

Section 60CC(3)(k): any family violence order that applies to the child or a member of the child's family …

[29] See wife’s second affidavit, paragraph 31 and Transcript, 16 June 2009, page 75, lines 9-14.

There are no family violence orders that apply between the parties or in respect of the children.
As indicated previously there was a 12 month family violence order issued in favour of the husband’s sister, Ms F, against the wife, which expired on 20 March 2009. Although the wife in paragraph 57 of her second affidavit described Ms F as being “patently dishonest”, she chose not to cross-examine this witness and consequently, Ms F’s evidence is to be preferred.

Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The Court agrees with the ICL that both parties, and more importantly the children, are in need of some final resolution of the matters before it.[30] The children’s best interests into the presently foreseeable future demand that they remain living with the husband and spend time with the wife in a professionally supervised environment. There are no other viable options available to the Court. In light of this reality, the instigation of further proceedings in the future may not be precluded should the wife seek professional assistance and provide appropriate psychiatric evidence to support the children’s time with her being unsupervised.
[30] Outline of Case document filed by the Independent Children’s Lawyer on 15 June 2009, page 6.

Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant

There is no other of fact or circumstance that the Court thinks is relevant in the present dispute.
The Court is also required under section 60CC(4) to consider the “extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent…”
This case is complicated by the reality that the wife has, to date, chosen not to spend any time with the children in a professionally supervised environment. Until this occurs it will be difficult for the wife to participate in the children’s lives, including the making of any decisions relevant to their upbringing.

Conclusion

The ICL submitted, and the Court agrees, that there is sufficient evidence to rebut the presumption in favour of equal shared parental responsibility. In her Outline of Case document Ms Forster stated:
“There is no practical communication between the parents, and the wife’s behaviour during the period of litigation suggests there is no prospect she has the capacity to properly assess the children's best interests.”[31]
The hearing only reinforced this reality. Accordingly, the presumption under section 61DA is rebutted and there is to be an order that the husband have sold parental responsibility for [X], [Y] and [Z].
[31] Outline of Case document filed by the Independent Children’s Lawyer on 15 June 2009, page 6.
As previously indicated, the Court has also reached the conclusion that the children’s best interests demand that they remain living in the full-time care of the husband and spend time with the wife in a professionally supervised environment. The children should also be able to communicate with the wife by telephone, cards and letters. By agreement, this can be extended to electronic forms of communication.
There will be Orders of the Court to reflect this decision.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Monahan FM

Associate: M. Raggatt

Date: 28 October 2009