VAUGHAN & VAUGHAN
[2015] FCCA 3268
•11 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VAUGHAN & VAUGHAN | [2015] FCCA 3268 |
| Catchwords: HELD – Mother is to have primary care of the parties’ three children with the Father to spend alternate weekends with the children with such time to increase upon the youngest child turning five years of age. |
| Legislation: Evidence Act 1995 (Cth), ss.140, 140(2) |
| Cited cases: AMS v AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238 |
| Applicant: | MS VAUGHAN |
| Respondent: | MR VAUGHAN |
| File Number: | MLC 3821 of 2014 |
| Judgment of: | Judge Bender |
| Hearing dates: | 12, 13, 14, 20, 21 August 2015 30 October 2015 |
| Date of Last Submission: | 30 October 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 11 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lethlean |
| Solicitors for the Applicant: | Trapski Family Law |
| Counsel for the Respondent: | Ms Swart |
| Solicitors for the Respondent: | Lennon Mazzeo |
| Counsel for the Independent Children’s Lawyer: | Ms Southey |
| Solicitors for the Independent Children’s Lawyer: | Lampe Family Law |
ORDERS
All previous parenting orders be discharged.
The parties have equal shared parental responsibility for
Xborn (omitted) 2006 (‘X’), Y born (omitted) 2010 (‘Y’) and Z born (omitted) 2012 (‘Z’).
X, Y and Z live with the Mother, commencing at 5:00pm on 11 December 2015.
X, Y and Z spend time and communicate with the Father as follows:
(a)Commencing the first weekend of Term 1 2016, each alternate weekend from after school Friday to 5:00pm Sunday and if Monday is a non-school day to 5.00pm Monday;
(b)Upon Z turning five, each alternate weekend from after school Friday to before school Monday and if Monday is a non-school day, to before school Tuesday;
(c)Upon Z turning six, each alternate weekend from after school Thursday to before school Monday and if Monday is a non-school day, to before school Tuesday;
(d)From after school Thursday (or 3:30pm if a non-school day) to 7:00pm in the alternate week;
(e)For two periods of four consecutive nights in the 2016 school term holidays by agreement and failing agreement from after school on the last day of term to 12.00 noon Tuesday in week one and from 12.00 noon Monday to 12.00 noon Friday in week two;
(f)For half of the school term holidays from 2017 by agreement and failing agreement for the first half in odd numbered years and the second half in even years;
(g)In the long summer holidays in 2015/2016 for six periods of two consecutive nights by agreement and failing agreement from 12.00 noon 19 December 2015 to 12.00 noon 21 December 2015, 12.00 noon 27 December 2015 to 12.00 noon 29 December 2015, 12.00 noon 3 January 2016 to 12.00 noon 5 January 2016, 12.00 noon 10 January 2016 to 12.00 noon 12 January 2016, 12.00 noon 17 January 2016 to 12.00 noon 19 January 2016 and 12.00 noon 24 January 2016 to 12.00 noon 26 January 2016;
(h)Commencing in 2016/2017 for one half of the long summer holidays as agreed between the parties and failing agreement on a week about basis commencing 5.30pm Friday on the last week of school 2016/17 and each alternate year thereafter and commencing 5.30pm Friday in the second week in 2017/18 and each alternate year thereafter.
(i)On each of X, Y and Z’s birthdays and the Father’s birthday for three hours if a school day by agreement (and in default of agreement from 3.30pm to 6.30pm) and for five hours if a non-school day by agreement (and in default of agreement from 10.00am to 3.00pm) if the time does not ordinarily fall on the Father’s time;
(j)From 3.00pm Christmas Day to 3.00pm Boxing Day 2015 and each alternate year thereafter;
(k)From 3.00pm Christmas Eve to 3.00pm Christmas Day 2016 and each alternate year thereafter;
(l)From 5.00pm the day prior to Father’s Day to before school Monday (or 9.00am if a non-school day) if such time does not ordinarily fall on the Father’s weekend;
(m)By telephone each Monday, Wednesday and on the Sunday X, Y and Z are not with the Father with the Father to call the mobile number provided by the Mother and otherwise the Mother shall facilitate X, Y and Z telephoning the Father upon their reasonable request to do so; and
(n)As otherwise agreed between the parties.
The Father’s time shall be suspended as follows:
(a)
Time pursuant to Orders 4(a), 4(b), 4(c) and 4(d) herein shall be suspended during all school holidays and time pursuant to
Orders 4(a), 4(b) and 4(c) shall resume the first Friday of the new term in odd numbered years and on the second Friday of the new term in even numbered years and time pursuant to Order 4(d) shall resume on the first Thursday of term in even numbered years and in the second Thursday of term in odd numbered years;
(b)From 3.00pm Christmas Eve to 3.00pm Christmas Day 2015 and each alternate year thereafter;
(c)From 3.00pm Christmas Day to 3.00pm Boxing Day 2016 and each alternate year thereafter;
(d)From 5.00pm on the day prior to Mother’s Day to 6.00pm Mother’s Day if the time does not ordinarily fall on the Mother’s weekend; and
(e)On each of X, Y and Z’s birthdays and the Mother’s birthday for three hours if a school day by agreement (and in default of agreement from 3.30pm to 6.30pm) and for five hours if a non-school day by agreement (and in default of agreement from 10.00am to 3.00pm) if the time does not ordinarily fall on the Mother’s time.
The Mother shall be at liberty to telephone X, Y and Z each Tuesday and Friday during any periods of time that they are with the Father for a consecutive seven day period and otherwise the Father shall facilitate X, Y and Z telephoning the Mother upon their reasonable request to do so.
Where practicable changeover shall occur at X, Y and Z’s schools/kindergarten, or otherwise at the rear of the (omitted) Club or as otherwise agreed between the parties in writing.
X shall continue to attend on Ms J or such other counsellor as recommended by Ms J for counselling and the parties shall follow her reasonable recommendations with respect to ongoing counselling.
The parties forthwith do all acts and sign all documents to enable X to be assessed by a suitably qualified educational therapist as to his intellectual functioning at their joint expense.
Each party shall forthwith advise the other in the event of any serious medical illness or injury to X, Y or Z and authorise the other party to make enquiries of the treating medical practitioner.
Each party shall keep the other informed of any medication/s X, Y or Z are taking and provide the medication at changeover with instructions as to its application/use.
Each party shall be at liberty to obtain (at their own expense) information from X, Y and Z’s school/s, day care, kindergarten including but not limited to newsletters, photograph order forms and school reports.
Each party shall be at liberty to attend school, day care and kindergarten events and extra-curricular activities that parents are usually invited to attend including but not limited to sports days, concerts, speech nights, parent-teacher interviews, matches and training.
The parties and their servants/agents be and are hereby restrained by injunction from:
(a)Denigrating the other to or in front of X, Y and/or Z or allowing anyone else to do so;
(b)Discussing the family law proceedings with or in front of X, Y and/or Z or allowing anyone else to do so; and
(c)Exposing X, Y and/or Z to parental conflict.
The Order of the Federal Circuit Court of Australia restraining the removal of X born (omitted) 2006 (‘X’), Y born (omitted) 2010 (‘Y’) and Z born (omitted) 2012 (‘Z’) from the Commonwealth of Australia dated 4 June 2014 be discharged.
The Australian Federal Police remove the names of X, Y and Z from the Airport Watch List at all points of international arrivals and departures in Australia.
In the event that either party wishes to travel overseas with X, Y and/or Z the travelling party shall:
(a)provide the other parent written notice of the proposed dates of travel no less than 45 days prior to the proposed travel; and
(b)provide the other parent with a full itinerary including details of where X, Y and/or Z will be residing for the duration of the overseas travel and a contact number on which they can be contacted no less than 28 days prior to the proposed travel; and
(c)provide the other parent with proof of the purchase of return tickets no less than 28 days prior to the proposed travel.
X, Y and Z’s passports shall be held by the Mother’s solicitors and shall be released to the travelling party within 7 days of the travelling party providing the Wife’s solicitor with proof of their compliance with Orders 17(a), (b) and (c) herein and the travelling party shall return X, Y and Z’s passports to the Mother’s solicitor within seven days of the travelling party returning to Australia.
The Mother shall continue to attend upon her treating psychiatrist
Dr K or such other psychiatrist as recommended by Dr K and follow all lawful directions given by Dr K or such other treating psychiatrist in relation to her ongoing attendance and treatment.
The Mother shall authorise Dr K or such other treating psychiatrist attended by the Mother to notify the Father in the event the Mother fails to follow all lawful directions given by Dr K or such other treating psychiatrist as to attendance and treatment or if Dr K or such other treating psychiatrist is of the view the Mother’s psychological health may significantly impact on the Mother’s capacity to care for X, Y and Z at any time.
The Independent Children’s Lawyer is requested to provide a copy of these Orders to Dr K.
The Mother forthwith enrol in the Child First Program (“the program”), (omitted) Region, telephone number (omitted), and follow all lawful directions given by the organisation conducting the program with respect to attendance.
The parties forthwith enrol in and complete the Parenting Orders Program at their joint expense offered by the Family Relationships Centre (“the FRC”) (omitted), telephone number (omitted), and follow all lawful directions given by the FRC in relation to ongoing attendance.
It is declared that this is an order to which Section 68P of the Family Law Act 1975 (Cth) applies and to the extent that it is inconsistent with, it over rides any Family Violence Intervention Order made in the Magistrates Court of Victoria.
(25)Any application by either party seeking to vary or suspend these orders, should be, if possible referred to the Chambers of Judge Bender to be listed as directed by Judge Bender.
IT IS NOTED that publication of this judgment under the pseudonym Vaughan & Vaughan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3821 of 2014
| MS VAUGHAN |
Applicant
And
| MR VAUGHAN |
Respondent
REASONS FOR JUDGMENT
Introduction
This complex and difficult matter relates to the living arrangements for the parties’ three children X born (omitted) 2006 (“X”), Y born (omitted) 2010 (“Y”) and Z born (omitted) 2002 (“Z”).
The parties agree orders should be made that they have equal shared parental responsibility for X, Y and Z but both seek orders that X, Y and Z live with them and spend time with the other parent.
The crux of this matter is whether the greater risk to X, Y and Z is the Mother’s mental health or the continuation of the disruption of their primary attachment to the Mother that not living in her primary care causes.
Background
The Mother was born on (omitted) 1980 in (country omitted) and is aged 35 years. The Mother is a qualified (occupation omitted) and is currently employed on a part-time basis as a (occupation omitted) at (employer omitted). The Mother has not re-partnered.
The Father was born in (omitted) on (omitted) 1978 and is aged
37 years. The Father is the managing director of a business, “(business omitted) Pty Ltd” which provides (omitted) services to (omitted). The Father has run this business since 2004. The Father has not re-partnered.
The parties met in (omitted) in 2005 when the Wife was in Australia on a working holiday. They commenced cohabitation in Sydney in
(omitted) 2005.
After the parties discovered the Mother was pregnant with X, she returned to the (country omitted). The Father followed shortly prior to X’s birth.
The parties lived in the (country omitted) prior to and after X’s birth for approximately eight months. They returned to Melbourne in (omitted) 2007.
The parties purchased the former matrimonial home in (omitted) 2007.
The Mother returned to work on a part-time basis as a (occupation omitted) at (employer omitted) in (omitted) 2007 whilst the Father continued to develop his business.
In 2008, the Mother undertook training to become a (occupation omitted) and in 2011 commenced employment on a part time basis as a (occupation omitted).
In mid-2011, there was an incident at the Mother’s work where (incident omitted). After this incident, the Mother had difficulty sleeping and began losing weight.
The Mother’s treating General Practitioner prescribed sleeping tablets to assist the Mother to sleep. In (omitted) 2010, the Mother was admitted to (omitted) Private Hospital where she was diagnosed with post-traumatic stress disorder. The Mother was prescribed further Benzodiazepine during her hospital stay.
In (omitted) 2011, the Mother was admitted to (omitted) Hospital Psychiatry Ward to address her ongoing dependence on Benzodiazepines and in particular Clonazepam. At this time the Mother was referred to Dr K psychiatrist who she continues to attend to this day.
The parties married on (omitted) 2011.
In (omitted) 2013 the parties and X, Y and Z travelled to the (country omitted) and (country omitted). At this time the Mother’s treating General Practitioner prescribed the Mother the Benzodiazepine, Clonazepam as the Mother was experiencing anxiety and weight loss.
By late 2013 and early 2014 the Mother’s mental health deteriorated significantly as she was not eating or sleeping properly. The Mother was greatly exceeding taking the prescribed amount of Clonazepam. Her treating General Practitioner was providing her with multiple repeat prescriptions via post and the Mother also had access to the drug at her work place.
The Mother concedes she was taking up to 100mg of Clonazepam per day. 8mg per day is considered an unsafe dosage.
The Mother was also losing considerable weight at this time. The Mother had previously suffered from an eating disorder in her teens after she had been sexually abused.
In the lead up to and during this period the parties’ relationship became increasingly unhappy.
In January 2014, the Mother was admitted to (omitted) Private Hospital for nine days. At this time the Mother was formally diagnosed with Anorexia Nervosa.
The Mother had further brief admissions to (omitted) Hospital, the (omitted) Clinic and (omitted) Private Hospital in early February 2014 because of her deteriorating mental health.
On 14 February 2014 the Mother was admitted to (omitted) Private Hospital as a voluntary patient under the care of Dr K for four weeks for treatment of her Anorexia Nervosa and Clonazepam addiction.
The Mother was discharged from (omitted) Private Hospital on
13 March 2014 and returned to the former matrimonial home. The considerable tension between the parties continued after the Mother’s return to the former matrimonial home.
On the morning of Sunday 23 March 2014 the parties argued. X, Y and Z were present at this time. A friend of the Mother’s, Ms L, was visiting the Mother and was sufficiently concerned about the parties’ interaction that she called the police. The police attended and negotiated for the Father to leave the former matrimonial home and to take X, Y and Z to his parents’ home.
After the Father and children left the former matrimonial home the Mother, in anger, kicked over the Father’s motor bike which was in the garage. Petrol and oil from the motor bike spilled on the garage floor.
Later that afternoon, the Mother attended the home of Ms L for support as she was most upset about the day’s events. At 9.00pm, shortly after the Mother had gone home, she returned to Ms L’s home to report there were “sparks in the garage”. The Mother and Ms L returned to the former matrimonial home. The garage was on fire. Ms L called the fire brigade and put a hose on the fire until the fire brigade arrived and put the fire out. The cause of this fire was said to be the petrol from the motor bike mixing with the oil on the garage floor resulting in a chemical ignition.
The Mother is adamant she did not start this fire, albeit it resulted from her having kicking the motor bike over in anger.
At approximately 1.00am the following morning the fire brigade and police again attended the former matrimonial home as a second fire had been lit in front of the garage.
Whilst the Mother denies all knowledge of the second fire, the subpoenaed Victoria Police LEAP records disclose that the Mother told the Police she had started the fire.
After the second fire, the police took the Mother to (omitted) Hospital for assessment under s 10 of the Mental Health Act 2014 (Vic).
The Mother was discharged from (omitted) Hospital on 27 March 2014.
After the incidents on 23 March 2014, X, Y and Z remained with the Father at the paternal grandparent’s home. The Mother spent limited supervised time with the children until the Easter weekend of 19 April 2014 when the Father and the children returned to the former matrimonial home so that the parties could consider possible reconciliation.
It is the Father’s evidence that he has little to no memory of the 2014 Easter weekend. It is his evidence that he slept most of the weekend and had no idea there had been an Easter Egg hunt until he saw some photographs after the weekend.
Given how he was feeling, the Father initially had a blood test performed by a doctor who is his parents’ neighbour to see if he had been bitten by a spider. The blood test indicated this was not so. The Father became suspicious that the Mother had given him Benzodiazepines and undertook a urine drug screen which was positive for Benzodiazepines.
The Mother is adamant she at no time gave the Father Benzodiazepines over the 2014 Easter weekend. The only explanation the Mother can offer as to how the Father returned a positive urine test is that he may have doctored the sample (as the test was unsupervised) or took Benzodiazepines prior to the urine drug screen to incriminate her.
After this incident the Father refused all time between X, Y and Z and the Mother.
On 5 April 2014, the Mother issued an Initiating Application seeking urgent parenting orders as well as property orders.
On 4 June 2014, Interim Orders were made for X, Y and Z to live with the Father and spend supervised time with the Mother each Wednesday from 4.00pm to 7.00pm and each Sunday from 10.00am to 3.00pm.
The matter returned to Court on 19 September 2014 where further Interim Orders were made. The orders provided for X, Y and Z to spend supervised time with the Mother from 10.00am to 7.00pm each Wednesday and Sunday and for Z to spend additional time with the Mother from 10.00am to 1.00pm each Thursday.
Orders were also made for the Mother to attend upon Dr G for a psychiatric assessment and for the parties and X, Y and Z to attend upon Ms B for a family report.
The matter returned to Court on 10 December 2014 for an Interim Hearing which was subsequent to the release of Dr G’s psychiatric assessment and Ms B’s family report. Also to hand were updated reports from the Mother’s treating psychiatrist Dr K.
On 10 December 2014 Interim Orders were made by consent which provided for X, Y and Z to live with the Mother on an unsupervised and increasing basis culminating in them living in a shared care arrangement with both parents from the commencement of
Term 1 in 2015.
Pursuant to the 10 December 2014 Orders, X, Y and Z were in the Mother’s care from 10.00am Friday 23 January 2015 to 7.00pm Monday 26 January 2015, the Australia Day weekend.
On the night of Saturday 24 January 2015 someone threw paint thinner over the Father’s motor vehicles which were parked outside his parent’s home.
It is the Father’s firm belief that it was the Mother who committed this act.
The Father has CCTV footage taken from security cameras at his parents’ home. The CCTV footage which was played to the Court shows a completely unidentifiable figure throwing something on the cars. It is the Father’s evidence that he recognises that figure as being the Mother.
Police have investigated the incident and confirmed they cannot identify the culprit.
The Mother categorically denies she damaged the Father’s cars. It is the Mother’s evidence she could not have damaged the Father’s cars as she, X, Y and Z spent the entire Australia Day weekend at (omitted) with friends and they did not return to Melbourne until Monday.
In support of this claim the Mother produced a text message sent by her to the Father on Saturday 24 January 2015 which shows X, Y and Z in the water at the beach.
It is the Father’s evidence he believes the Mother and children returned from (omitted) to the Mother’s house on Saturday night as there are text messages between the Mother and himself and the Mother and
Ms L which point to the Mother, X, Y and Z returning to Melbourne on Saturday night.
On 11 March 2015 the Mother filed an urgent Application in a Case seeking a Recovery Order as the Father had not allowed X, Y and Z to return to her care from 2 March 2015.
In her Affidavit in support of her Application in a Case, the Mother deposed to the Father sending abusive text messages, making angry phone calls, threatening to over hold the children, following her, parking near her home and taking photographs of her home.
The Mother’s Application in a Case was listed for urgent hearing on
23 March 2015. The Father, who at that time was unrepresented, had not filed any answering documents save for a Notice of Risk.
On the day of the hearing the Father was permitted to make submissions from the bar table. He indicated he believed X, Y and Z were at risk in the Mother’s care. When asked to expand on what he alleged that risk to the children in the Mother’s care to be, the Father indicated the following:
·X has told him the Mother hit him in the head because he refused to mow the lawn when she asked him to do so;
·The children have told him the Mother leaves them alone;
·X has told him the Mother sent him to the shop on his own to buy bread and milk as they would not otherwise get breakfast. X told him he had never done this before. The Father googled the nearest shop to the Mother’s home and observed that X would have had to cross a railway line and other roads to get from the Mother’s home to the milk bar;
·X, when told the Mother was collecting him from school ‘lost it’ because he is, to quote the Father, ‘petrified of the Mother’; and
·The Father has CCTV footage of the Mother throwing paint thinner over his car on 25 January 2015.
The Mother categorically denies the Father’s allegations.
In response to the Father’s Notice of Risk, the Department of Health and Human Services (“DHHS”) provided a lengthy response to the Court on 22 March 2015.
In that document DHHS set out their detailed investigations of the parties’ concerns which included the Sexual Offences and Child Abuse Investigation Team (SOCIT) interviewing the children, discussions with Dr K and discussions with both parties.
DHHS concluded that:
“…the information and evidence does not indicate that the children are at risk of significant harm. Child Protection are of the view the main concerns are around the children not continuing to be exposed to ongoing parental conflict”.
On 24 March 2015, the Court held that it was satisfied that X, Y and Z’s were not at risk in the Mother’s care and it was in their best interests they immediately recommence spending unsupervised time with the Mother. The Court ordered that X, Y and Z live equally with the each of their parents on a 5/5/2/2 basis in each fortnight.
Orders were also made restraining the parties from physically disciplining the children, discussing the proceedings in their hearing or presence, showing the children court documents, reports or orders and from leaving the children unattended.
The matter proceeded to final hearing on 12 August 2015 and evidence was heard on 12 August 2015, 13 August 2015, 14 August 2015,
20 August 2015 and 21 August 2015 at which time judgment was reserved.
On 19 October 2015, the Father filed an urgent Application in a Case seeking that the interim orders that X, Y and Z live with the Mother for seven days each fortnight be suspended and that they live with him and spend supervised time only with the Mother.
In support of his Application in a Case the Father filed an affidavit sworn 15 October 2015. In that affidavit the Father deposed:
·X has told him that on 25 September 2015 the Mother left he, Y and Z alone outside a surf shop whilst the Mother “stormed off” in her car. Upon her return she angrily put the children in the car and punched X to the side of his head with a closed fist;
·Later that evening two friends of the Mother attended the Mother’s home because of their concerns about the Mother’s mental health;
·Police and ambulance were called to the Mother’s house that night;
·On 26 September 2015, the Mother did not attend for changeovers on Z’s birthday as per Court Orders;
·When the Father attended the Mother’s home, the Mother was not there but a neighbour told him of her concerns about the safety of the children when with the Mother;
·On 27 September 2015, the Father attended the Mother’s home. X unlocked the front door and escaped but Y and Z remained in the home. The Father called the police who attended and persuaded the Mother to let all three children leave with the Father;
·
The Mother subsequently sent the Father abusive text messages and made calls to the Father, including one call at 1.53am on
10 October 2015 which he did not answer.
On 21 October 2015, the Mother filed an Answering Affidavit in which she set out her concerns in relation to the Father’s care of X, Y and Z. The Mother denied the Father’s allegations and in particular deposed:
·There was no incident at the surf shop and at no time were X, Y and Z left outside the shop on their own;
·The police did not attend the surf shop;
·Her friends did not attend her house on 25 September 2015 out of concern for her mental health but as pre-arranged baby sitters;
·No ambulance attended her house;
·The Father had agreed Z would spend all her birthday with the Mother and accordingly she and the children had gone out for the day;
·The Father attended at 10.10am on 27 September 2015 well prior to the 12.00pm change over time. The Father was abusive to X, broke the lock on the front screen door and it was the Mother who called the police; and
·The Mother could not have made the call to the Father at 1.53am on 10 October 2015 as she was (working omitted) at that time and mobile phones are not allowed in (workplace omitted).
The Father’s Application in a Case was listed on 23 October 2015.
Given the contradictory nature of the parties’ evidence and that there were independent witnesses to most of the incidents in dispute, the Father’s Application was adjourned to 30 October 2015. The Independent Children’s Lawyer was ordered to issue a Subpoena to Produce Documents to (omitted) Private Hospital, Ambulance Victoria and Victoria Police and to issue a Subpoena to attend Court to Ms L, Ms M and Mr G from the Department of Health and Human Services.
On 30 October 2015 evidence was taken from all subpoenaed witnesses as well as Dr K.
Whilst the evidence of these witnesses will be set out in detail in this judgment, the evidence of Ms L and Ms M is that on 23, 24, 25 September 2015 the Mother became most unwell as a result of the stress and anxiety of waiting for the decision in this case.
The Mother’s behaviour became so sufficiently concerning on 25 September 2015 that Ms M rang both the Mother’s counsellor Ms I and Dr K who in turn were so concerned about the deterioration of the Mother’s behaviour by Ms M and her potential risk to the children and herself that they contacted the DHHS and rang the police.
Dr K also asked Ms M to remain with the Mother for the entirety of the night of 25 September 2015.
The evidence of Dr K is this “crisis” has now passed and the Mother is now managing her stress and anxiety.
Since this episode the maternal grandmother has arrived from (country omitted) and is staying with the Mother until at least mid-December.
Given Dr K’s evidence and the maternal grandmother’s presence, Orders were made on 30 October 2015 that X, Y and Z spend day time only with the Mother over the Melbourne Cup weekend to enable them to again be comfortable with the Mother and thereafter they resume living with each of the parties in accordance with the interim orders made 23 March 2015 until such time as a final decision in this matter is made.
The Evidence
The Mother
The Mother relies on her affidavits sworn 4 December 2014,
11 March 2015, 23 March 2015 and 7 August 2015. The Mother also gave viva voce evidence at the Final Hearing.
The Mother also relies on the affidavits of her treating psychiatrist
Dr K sworn 12 September 2014 and 5 December 2014.
The Mother is seeking orders in relation to the living arrangements for X, Y and Z as follows:
(1)The parents have joint parental responsibility for the children X born (omitted) 2006, Y born (omitted) 2010 and Z born (omitted) 2012.
(2)The children live with the Mother.
(3)The children spend time and communicate with the Father as follows:
(a)from after school Friday (or 3:30pm if a non-school day)
to 6:00pm Sunday on alternate weekends with respect to X and Y with such time being extended to before school Monday (or 9:00am if a non-school day) from February 2016;(b)from 9:00am to 6:00pm Saturday and Sunday on alternate weekends (same weekend as X and Y) with respect to Z;
(c)from after school Thursday (or 3:30pm if a non-school day) to 7:00pm on the alternate week;
(d)for three periods of two consecutive nights in the September school term holidays by agreement with respect to X and Y, and from 9:00am to 6:00pm with respect to Z;
(e)for two periods of four consecutive nights in 2016 school term holidays by agreement with respect to X and Y, and from 9:00am to 6:00pm with respect to Z;
(f)for half the school term holidays from 2017 by agreement and failing agreement, the Mother shall elect either the first or second half by providing notice to the Father in writing at least 28 days’ prior;
(g)in the long summer holidays in 2015/2016 for eight periods of two consecutive nights in the long summer holidays by agreement;
(h)in the long summer holidays in 2016/2017 for four periods of five consecutive nights in the long summer holidays by agreement;
(i)in the long summer holidays in 2017/2018 on a week-on week-off basis;
(j)on the children’s and Father’s birthdays for three hours if a school day by agreement (and in default of agreement from 3:30pm to 6:30pm) and for five hours if a non-school day by agreement (and in default of agreement from 10:00am to 3:00pm) if the time does not ordinarily fall on the Father’s time;
(k)from 2:00pm Christmas Day to 2:00pm Boxing Day each year with respect to X and Y, and from 2:00pm to 6:00pm Christmas Day with respect to Z;
(l)from 5:00pm the day prior to Father’s Day to 6:00pm Father’s Day if the time does not ordinarily fall on the Father’s weekend with respect to X and Y, and from 9:00am to 6:00pm Father’s Day with respect to Z; and from 2016 with all three children from 5:00pm the day prior to Father’s Day to before school Monday (or 9:00am if a non-school day);
(m)from 9:00am Good Friday to 5:00pm Easter Saturday in 2016 and each alternate year thereafter;
(n)from 5:00pm Easter Saturday until 5:00pm Easter Monday in 2017 and each alternate year thereafter;
(o)by telephone at reasonable times with the Mother to provide a mobile telephone for use by the children when with the Mother, and the Mother shall facilitate the children calling the Father;
(p)by telephone twice a week during any periods of time that the children are with the Mother for a consecutive seven day period; and
(q)as otherwise agreed between the parties.
(4)For completeness, overnight time for the Father with Z shall commence once Z commences primary school unless otherwise agreed.
(5)The Father’s time with the children shall be suspended as follows:
(a)from 9:00am Christmas Eve to 2:00pm Christmas Day each year;
(b)from 5:00pm on the day prior to Mother’s Day to 6:00pm Mother’s Day if the time does not ordinarily fall on the Mother’s weekend;
(c)on the children’s and Mother’s birthdays for three hours if a school day by agreement (and in default of agreement from 3:30pm to 6:30pm) and for five hours if a non-school day by agreement (and in default of agreement from 10:00am to 3:00pm) if the time does not ordinarily fall on the Mother’s time;
(d)from 9:00am Good Friday to 5:00pm Easter Saturday in 2017 and each alternate year thereafter;
(e)from 5:00pm on Easter Saturday until 5:00pm Easter Monday in 2016 and each alternate year thereafter; and
(f)as otherwise agreed between the parties.
(6)The Mother shall be at liberty to telephone the children twice a week during any periods of time that the children are with the Father for a consecutive seven day period.
(7)Where practicable, changeover shall occur at the children’s school, or otherwise at the (omitted) Club or as otherwise agreed.
(8)X shall continue to attend on Ms J for counselling and the parties shall follow her reasonable recommendations with respect to ongoing counselling.
(9)Each party shall forthwith advise the other in the event of any serious medical illness or injury to the children, or any of them, and authorise the other party to make enquiries of the treating medical practitioner.
(10)Each party shall keep the other informed of any medication/s the children, or any of them, are taking and provide the medication at changeover with instructions as to its application/use.
(11)Each party shall be at liberty to obtain (at their own expense) information from the children’s school/s, daycare, kindergarten etc including any documents usually disseminated to parents including (but not limited to) newsletters, photograph order forms and the like.
(12)Each party shall be at liberty to attend school, daycare, kindergarten etc events that parents are usually invited to attend including (but not limited to) sports days, concerns, prize giving, parent-teacher interviews etc.
(13)The parties and their servants/agents be and are hereby restrained by injunction from:
(a)denigrating the other to or in front of the children (or any of them) or allowing anyone else to do so;
(b)discussing the family law proceedings with or in front of the children (or any of them) or allowing anyone else to do so; and
(c)exposing the children (or any of them) to parental conflict.
(14)The parties be permitted to leave the Commonwealth of Australia AND IT IS DIRECTED that the Australian Federal Police remove the name/s of the children from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
(15)The Applicant of solicitor for the Mother be responsible for effecting service of a sealed copy of this order upon the proper officer of the Australian Federal Police AND IT IS REQUESTED that the said Australian Federal Police give full force and effect to this order.
(16)The Father provide the children’s passports to the Mother within 48 hours.
It is the Mother’s evidence that until the incident on 25 March 2014 she had always been X, Y and Z’s primary carer and that now she is well on the road to recovery it is in the best interests of X, Y and Z that they return to her primary care.
It is the Mother’s evidence that leading up to the incident on 25 March 2014 she became increasingly unwell in that she was suffering from Anorexia Nervosa and had become addicted to Clonazepam.
It is the Mother’s evidence that in the months leading up to 25 March 2014, the parties’ relationship had become increasingly difficult and that she felt more and more unsupported by the Father as she struggled to deal with her health issues.
It is the Mother’s evidence that since the parties’ separation she has addressed and continues to address her health issues. She attends her treating psychiatrist Dr K on a weekly basis and is committed to continuing to attend upon Dr K as directed by her.
It is the Mother’s evidence that the Clonazepam addiction is well and truly under control. She is currently prescribed a dosage of 4mg per day which she describes as a therapeutic dosage.
It is the Mother’s evidence that with the finalisation of these proceedings she has been advised by Dr K that she will be fully weaned from the use of this drug.
It is the Mother’s evidence that she believes the Father to be pressuring the children to make false and inaccurate reports of her parenting of them which is causing them, and particularly X, considerable distress.
It is the Mother’s further evidence, that Z in particular is not coping with being out of her primary care and that she has observed Z’s behaviour to be regressing such that she is talking like a baby, being particularly clingy and is extremely distressed whenever she has to return to the Father’s care.
It is the Mother’s evidence that Y is also becoming very clingy and insists he sleeps with her. He is behaving very aggressively towards X in particular. This behaviour was not exhibited by him prior to the parties’ separation.
It is the Mother’s evidence that whilst she does continue to have issues with her eating, particularly when under stress, her psychological and mental health is properly managed.
The Mother is strongly of the opinion that whilst the children love their Father and he loves them, it is in their best interest that they live primarily in her care and spend regular time with the Father to ensure that they reconnect with her as their primarily carer and that they are afforded the stability and security that living primarily with her will provide.
During the course of this litigation there were a number of key incidents to which a great deal of time and evidence was devoted. It is my intention to address each of these incidents given the weight attached to them and the picture it paints of the parties’ relationship and parenting capacity.
28 March 2014 – The Garage Fires
The circumstances in which the parties’ garage caught fire and the second fire later that evening have been set out in some detail in this judgment.
The Mother was asked given the state of her health at this time, and in particular the extraordinarily high levels of Clonazepam she was taking on a daily basis, whether she considered X, Y and Z to be at risk in her care.
It is the Mother’s evidence that she does not believe that X, Y and Z were at risk in her care at this time.
The Mother concedes that during this period she was involved in two minor motor vehicle accidents when the children were in the car with her, including one in which she had concerns she may have hit a pedestrian although subsequent enquiries indicated no one had reported to the police being hit by a car.
Easter 2014 - Father’s allegation he was drugged by the Mother
The circumstances surrounding this incident have also been set out in detail in this judgment.
The Mother was asked whether it was possible that given the high level of Clonazepam she was taking at this time, she cannot remember if she had either deliberately or inadvertently given the Father Clonazepam.
It is the Mother’s evidence that despite the high dosage of Clonazepam taken by her at this period, she has a clear memory of her actions at all times and is adamant that she at no time drugged the Father over the Easter weekend.
New Year 2015
In paragraph 42 of the Wife’s affidavit sworn 11 March 2015 she deposes that the Father contravened the Orders in that X, Y and Z were to spend time with her from 3 to 5 January 2015 and they did not do so as the Father took them to Sydney to visit his family between 26 December 2014 and 12 January 2015.
The Mother further deposes this during this time she did not speak to the children after Christmas Day as the Father would not allow any communication between her and the children.
In response to that allegation the Father produced his mobile phone and showed the Court a series of text messages between himself and the Mother.
Those text messages clearly indicate that the Mother understood the Father was to be in Sydney with the children until 12 January 2015 and that the Mother was at one stage contemplating travelling to Sydney herself during this period with a friend.
The messages also show the Father inviting the Mother to contact him in order to speak to X, Y and Z.
When the Mother was shown the text messages on the Father’s phone, it was her evidence that she had not sent them. She suggested that the Father had manufactured those messages by accessing her phone using iMessages as opposed to the normal text messaging service.
It was explained to the Court that when a message on an iPhone has a blue background they have come through as iMessages and when messages have a green background they have been sent using normal text message technology.
It was further explained to the Court that messages sent by imessage could be hacked or altered by the person recovering these messages but messages sent using normal text message technology could not be hacked or altered in anyway.
The difficulty with the Wife’s evidence in this regard is that the screen shot from the Father’s phone shows that the messages were sent had a green and not a blue background.
Australia Day Weekend 2015 – The Car Incident
The circumstances around this incident have been set out in this judgment.
It is the Mother’s evidence that she did not throw paint thinner over the Husband’s motor vehicles. It is her evidence that it was not possible for her to have vandalised the Father’s cars on the Saturday night as she, X, Y and Z were with friends at their beach house in (omitted) until Monday morning.
In the Mother’s affidavit sworn 7 August 2015 and when giving her viva voce evidence the Mother told the Court that the friends that she was staying with could confirm that she and the children were in (omitted) and that further she could produce to the Court a receipt from a restaurant in (omitted) where she and her friends ate dinner on the Saturday night.
The Mother was shown a series of text message exchanges between herself and the Father that was on the Father’s mobile phone.
That exchange is as follows:
·Sunday 25 January 2015 10.36am:
Father: Can I say good morning to the kids? And u?
·Sunday 25 January 2015 11.59am
Mother: Sorry I just saw ur message had lazy morning kids didn’t get out of bed til late so I cleaned floor. Z is in bed again & boys are watching a movie. Are you ok?
********
Father: Just wanted to say hello to kids. Maybe later?
********
Mother: For sure. Do u want to meet or just talk on phone? I am not going to “restrict U from ur kids games” have to do some grocery shopping & said might go to a park or something somewhere. Nothing fixed yet they r exhausted from yday we didn’t get hm till late.
********
Father: I am out later. Can say hello tonight. Thanks.
********
Mother: Ok.
·Sunday 25 January 2015 at 5:36pm:
Mother: Can I just talk to u re: X – it’s medical related, call me when ur free if u can its not serious but following Orders & so need ur opinion.
·Sunday 25 January 2015 at 7:00pm:
Mother: For gods sake this morn U want to talk to ur kids, now I try twice Y and Z are exhausted so going to bed & U don’t answer I tell them U want to talk but U don’t answer to them what do u think they feel about that?
·Monday 26 January 2015 at 10:13am:
Mother: What time u want kids? I fell yday I think I need to get X-ray as I’ve been up all night having pain relief & think would b nice for them to spend time with U on aus day.
·Monday 26 January 2015 at 11:24am:
Father: I’m happy to have them whenever!
********
Mother: Ms L is on her way as I’m in too much pain
********
Mother: Have a good day with the kids – Happy Australia Day.
The Mother initially denied that this accurately reflected the exchange of messages between her and the Father over this weekend.
The Mother was asked to produce her mobile phone. When she scrolled through her messages she located the text message exchange between herself and the Father set out above.
In response to this discovery, it is Mother’s evidence that she cannot recall sending these messages and she remains adamant that she and the children were in (omitted) for the entirety of the weekend.
It was put to the Mother that a sensible interpretation of the messages sent by her to the Father is she returned from the beach on Saturday night and had spent the remainder of the weekend at home with X, Y and Z.
It is the Mother’s evidence that she was in (omitted) for the entirety of the Australia Day weekend and did not return to her home until about Monday morning.
The Mother was also questioned about a series of text messages between herself and her friend Ms L over the Australia Day weekend. These messages were taken from the Mother’s phone.
Those messages are as follows:
·Saturday 24 January 2015 at 2:05pm:
Mother: Hey, sorry for my curt msg last nt. Had a lot on my mind. Anyway glad we did beach boys just in their element. Trying to get to (omitted) now for a walk & ice cream, wondered if u could bring U back a vanilla slice as apology?? I might even share with u???? Are u around later, could you drop by? Think I have worn boys out and myself body boarding. X
·Saturday 24 January 2015 at 4:15pm:
Ms L: Cant drop by today…Could tomorrow night. Glad today at beach has gone well.
********
Mother: Ok see you tomorrow then, I couldn’t get slice the queue was out of the door and it was crazy then they were asking ppl to come back in an hr. Sorry
********
Mother: Also, sorry for my messages yday, my children are back! Happy looking gorgeous. Normal loving water we are sitting on beach building a hole. I just don’t know what happens in the time I don’t have them to send them so crazy.
********
Mother: And I think I made a good decision not to say with (omitted) as nice to be alone with them & do things we used to do with Mr Vaughan. Kind of shows them it can still b fun/similar with just me.
·Sunday 25 January 2015 at 10:52am:
Mother: Can I say good morning to the kids? And U?
I just got this from Mr Vaughan, I don’t want to deprive kids but after all horrible things he said on thurs I don’t want to talk to him kids haven’t even asked but not sure how to respond?? Pls help sorry I know U r prob busy we r just still in pjs having a quite sun morn.
·Sunday 25 January 2015 at 6:46pm Ms L responds:
Ms L: Should be at your place about 8:30.
Mother: Ok but I didn’t realise that you were away. I’ve had a fall im trying to get kids to bed but just need to sort a splinter in X foot from the water. Fell on wrist & hip but seems ok just sore & panicked kids.
When questioned about the messages exchanged between herself and
Ms L, it is the Mother’s evidence that she has no recollection of having a fall or of injuring herself over the Australia Day weekend or of Ms L collecting X, Y and Z and returning them to the Father on her behalf.
March 2015 – The Father stopping time between the Mother and the Children
This incident has been set out in some detail in this judgment as has the Mother’s denial of the allegations made against her by the Father.
In the report prepared by the Department of Health and Human Services received by the Court on 24 March 2015 they set out that X disclosed an incident whereby the Mother’s knee had accidentally made contact with his head when he was sitting on the stairs and the Mother was walking by him.
The Mother was asked about the possibility of her accidentally hitting X in the head with her knee. The Mother is adamant that no such incident had occurred.
The Hairdresser Issue
In Dr K’s session notes for 5 June 2015, Dr K sets out that the Mother told her the Father had booked in with her hairdresser which she found to be a real “invasion of her space.”
In her viva voce evidence the Mother indicated that she had received a call from her hairdresser to advise that the Father had made an appointment to come and see him to have his haircut.
It is the Mother’s evidence she was most concerned about this as she confides a great deal in her hairdresser.
It is her evidence that she felt the Father’s actions to use her hairdresser to be invasive and she believes that the Father chose to attend her hairdresser to purposefully find out what it is that she tells him.
In cross examination it was put to the Mother that on 2 June 2015 both she and the Father were with X at the (omitted) Hospital because X had been rushed there as a result of a severe allergic reaction he suffered.
It was put to the Mother that it would be the Father’s evidence that at the hospital she and the Father were chatting quite amicably. The Father raised with the Mother that he was thinking of having his hair cut for the first time in many years and that the Mother had suggested to him that he should go to her hairdresser. It was further put to the Mother that it would be the Father’s evidence that the Mother had provided him with her hairdresser’s details so that he could make an appointment.
The Mother denies that this discussion took place between she and the Father at the hospital.
The Mother had put to her a series of text messages between she and the Father that were on the Father’s phone after X had been released from the hospital. These messages:
Mother: thanks for coming today and for coffee. Good luck with your hair will look good I am sure. Send us a photo when done.
Father: no problem, I am nervous! It has been 15 years! You have never seen me with short hair!
Mother: well new chapter, new beginnings, I always loved it long of course but you don’t need to worry about that now but you know what they say a change as good as a holiday.
Father: yes.
Mother: just showed Mr U the pic he will be good he is really tall lovely bloke they win salon of the year…
Mr U is the name of the Mother’s hairdresser.
Subsequent to those messages there is a series of photographs of the Father with his new haircut sent to the Mother to which she makes complimentary comments.
When questioned initially in relation to these messages, the Mother denied that she had sent those messages to the Father. However, when her phone was called for, the exchange of text messages as set out above were on the Mother’s phone.
The 25 September 2015 incident
The circumstances around this incident have been detailed to some degree in this judgment to date.
In the Father’s affidavit sworn 15 October 2015 supporting his Application in a Case that the current parenting orders be suspended and the Mother have supervised time only with X, Y and Z he deposes at paragraph 11 as follows:
“I have serious protective concerns for my children but especially X. He has confirmed with the Police what happened on the day of the 25th and he has also told SOCIT ((omitted)) and also DHHS when they attended his school for a formal interview and also told his psychiatrist. His story has not changed at all.”
In response to the Father’s affidavit, the Mother in her affidavit sworn 21 October 2015 paragraph 56 deposes as follows:
“In relation to paragraph 11, I say that the Father has engineered the whole situation in order to paint me as mentally unstable. This is a continuation of his previous behaviour. I had hoped he would settle down whilst we were waiting for judgment, however his behaviour has simply escalated in what I can only assume is due to his desperation to have the children in his primary care.”
The call to the Father at 1.53am on 10 October 2015
It is the Father’s evidence there was a call to his phone at 1.53am on 10 October 2015 which he did not answer. He believes the Mother made that call.
It is the Mother’s evidence she could not have made the call as she was at work in the (working omitted) at that time.
The records from (employer omitted) confirm the Mother was attending (duties omitted) and again at 4.32am on 10 October 2015.
Dr K
Dr K swore two Affidavits on behalf of the Mother on 12 September 2014 and 5 December 2014.
Dr K produced her session notes relating to the Mother for the four years that she has been treating her and gave viva voce evidence at the final hearing.
Dr K also gave evidence by telephone on 30 October 2015 following the Father’s urgent Application in a Case that was listed for hearing on that day.
It is Dr K’s evidence that she believes that the Mother’s demeanour and resilience since she first started treating her in 2011 has increased and that in the last year in particular the Mother has “kept it together” and behaved in a much more mature and consistent way.
Dr K indicates that she is “quite pleased” with the Mother.
It is Dr K’s evidence that the Mother continues to struggle with her battle with Anorexia Nervosa and that this is her current primary focus with the Mother. Dr K is also assisting the Mother to cope with the stress associated with the ongoing litigation and the Mother’s belief that she has to constantly keep proving herself and rebutting the allegations of her poor ongoing poor mental health and bad parenting made against her by the Father.
It is Dr K’s evidence that when the Mother is particularly stressed and anxious she struggles with being able to eat.
It is Dr K’s evidence that with the resolution of these proceedings and if there is an outcome in the terms sought by the Mother then she would expect to see an immediate improvement in the Mother’s battle with her eating disorder.
It is Dr K’s evidence that she has no concerns about the Mother’s parenting or that she presents as a risk to X, Y and Z save for the period when she was taking high doses of Benzodiazepine.
In relation to the Mother’s Benzodiazepine addiction, it is Dr K’s evidence that this is now well in hand.
It is Dr K’s evidence that once this litigation has finalised the plan is to completely eliminate the Mother’s use of Clonazepam and ensure that it is never prescribed to her again. Dr K indicated that she had written to the Mother’s General Practitioner setting out her concerns about the prescribing of Benzodiazepine to the Mother and she is confident the practice understands that this is not a drug the Mother is to be prescribed in the future.
It is Dr K’s evidence that she believes that it is the Mother’s relationship and interactions with the Father that are the primary cause of the Mother’s stress.
In her viva voce evidence Dr K made the following observations:
“I think the Husband contacts my patient on a regular basis, and my understanding is that the interaction is between very positive to very negative. I believe that this is really destabilising her. She is torn between her feelings – still existing towards her Husband and her disbelief of the way she has been treated. That has been a problem during the last few months to try to keep up the boundaries between them and stop the enmeshment and the reaction to each other, but that has been difficult.”
Dr K gave the following evidence:
“I believe that this kind of interaction constitutes abuse – emotional abuse, I believe that it is a reason why – or part of the reason that my patient developed Anorexia and it is still difficult to treat. So I am hoping that if this interaction subsides, or the intensity of that, I can actually help her more in terms of – to overcome her Anorexia.”
In the psychiatric assessment conducted by Dr G, he raised the possibility that if the Court was satisfied that the Mother had given the Father Benzodiazepine over the Easter weekend in 2014 then:
“Ms Vaughan has been suffering from either a personality disorder or significant erratic and unpredictable personality traits which would have the potential to impact significantly upon future relationships and the care of her children.”
It is Dr K’s evidence that she does not believe the Mother has a personality disorder though some of her behaviours when under the influence of Benzodiazepine would have been described as such.
In relation to the Mother’s behaviour around 23 to 25 September 2015 it is Dr K’s evidence that she did not see the Mother during that particular period.
It is Dr K’s evidence that she saw the Mother on the 22 September 2015 and on that occasion the Mother was becoming very distressed that the judgment in this matter had not been handed down and that it meant the decision would go against her.
It is Dr K’s evidence that she was contacted by Ms M on 25 September 2015 and from her report it appeared the Mother was emotionally unregulated.
It is Dr K’s evidence that she was concerned that if the Mother was left alone with X, Y and Z when in this state it would be very frightening for the children to see the Mother in that kind of emotional state.
On 25 September 2015, Dr K did not believe the Mother would physically harm the children. However, because of her concern that X, Y and Z could be frightened by the Mother’s emotional state, Dr K contacted the Department of Health and Human Services and also asked that Ms M stay with the Mother’s friend’s stay with the Mother on the night of 25 September 2015 to make sure that there were no difficulties for X, Y and Z.
It is Dr K’s evidence that she has seen the Mother weekly since
25 September 2015 and that the Mother is now settled. It is her evidence the Mother has been very cooperative in engaging with her and discussing strategies in how to better cope with her stress and anxiety.
The Father
The Father relies on his Affidavits sworn 2 June 2014, 9 September 2014, 9 December 2014 and 11 August 2015. The Father also gave
viva voceevidence at the final hearing.
At the commencement of the final hearing, it was the Father’s proposal that there should be a continuation of the shared care arrangements for X, Y and Z.
However, at the conclusion of the substantive evidence, the Father indicated through his Counsel that he was seeking Orders in the following terms:
(1)All previous parenting orders be discharged SAVE AND EXCEPT the Watch List Orders contained in Orders 4, 5 and 6 of the Orders made 4 June 2014 which shall continue in operation until their expiry in June 2016.
(2)The Husband and Wife have equal shared parental responsibility for decisions about major long term issues in relation to the children X born (omitted) 2006, Y born (omitted) 2010 and Z born (omitted) 2012 (“the children”).
(3)The children live with the Husband.
(4)The children spend time and communicate with the Wife as follows:
(a)during school terms, each alternate weekend from the conclusion of school (or 3:30pm) on Friday to 5:30pm Sunday;
(b)during school terms, each alternate week from the conclusion of school on Thursday (or 3:30pm) to 5:30pm Friday;
(c)for one half of each school term holiday as agreed and failing agreement in the first half from the conclusion of school until 5:30pm on the middle Saturday in 2015 and each alternate year thereafter and in the second half from 5:30pm on the middle Saturday to the commencement of school in 2016 and each alternate year thereafter;
(d)for one half of the summer school holiday period as agreed and failing agreement on a week-about basis commencing 5:30pm Friday in the first week in 2015/16 and alternate years and 5:30pm Friday in the second week in 2016/17 and alternate years;
(e)from 3:00pm Christmas Day to 5:30pm Boxing Day in 2015 and each alternate year thereafter;
(f)from 10:00am Christmas Eve to 3:00pm Christmas Day in 2016 and each alternate year thereafter;
(g)on Mother’s Day weekend from 5:30pm Saturday to 5:30pm Sunday;
(h)on each of the children’s birthdays as agreed and failing agreement, for two hours if a non-school day from 3:30pm to 5:30pm or for 4 hours if not a school day from 10:00am to 2:00pm;
(i)on the Wife’s birthday for four hours as agreed and failing agreement if a school day from 3:30pm to 7:30pm and if not a school day from 10:00am to 2:00pm;
(j)by telephone each Monday and Thursday when the children are not in her care with the Wife to call the children and at any other reasonable time requested by the children;
(k)such further and other time as agreed.
(5)The children’s time with the Wife be suspended as follows:
(a)to the extent necessary, during periods when the Wife is not well enough to care for the children;
(b)from 10:00am Christmas Eve to 3:00pm Christmas Day in 2015 and each alternate year thereafter;
(c)from 3:00pm Christmas Day to 5:30pm Boxing Day in 2016 and each alternate year thereafter;
(d)on Father’s Day weekend from 5:30pm Saturday to 5:30pm Sunday;
(e)on each of the children’s birthdays as agreed and failing agreement, for two hours if a school day from 3:30pm to 5:30pm or for 4 hours if not a school day from 10:00am to 2:00pm;
(f)on the Husband’s birthday for four hours as agreed and failing agreement if a school day from 3:30pm to 7:30pm and if not a school day from 10:00am to 2:00pm; and
(g)such further and other times as agreed.
(6)Whilst the children are spending time with the Wife they communicate by telephone with the Husband each Monday and Thursday with the Husband to call the children and at any other reasonable time requested by the children.
(7)The Wife continue to attend upon her treating psychiatrist as recommended by that psychiatrist and notify the Husband forthwith in the event that there is a change of treating psychiatrist.
(8)For the purposes of paragraph (5)(a) above, the Wife authorise her treating psychiatrist to communicate with the Husband as follows:
(a)to enable the Husband to notify the treating psychiatrist by email, copied to the Wife, of any concern he may have about the Wife’s psychological health which may significantly impact upon her capacity to care for the children at that time;
(b)to enable the treating psychiatrist to notify the Husband of any concern the psychiatrist may have about the Wife’s psychological health which may significantly impact upon her capacity to care for the children at that time.
(9)The Husband and Wife keep each other informed of their residential address, an email address and a contact telephone number.
(10)The Husband ensure that each parent is listed as an enrolling parent on the children’s school enrolment documents and each party is entitled to attend all school functions ordinarily attended by parents and to receive all notices, newsletters, photographs and reports at his or her own expense and request.
(11)The Husband notify the Wife at least 30 days in advance of any proposed change of school and at least 3 months in advance of his proposal for enrolling Z in school for the first time.
(12)The Husband and Wife keep each other informed of any serious illness, serious accident or hospitalisation of any of the children and any attendance proposed for any of the children at a child counsellor, including contact details of treating medical professionals.
(13)The Husband and Wife be and are hereby restrained from using physical discipline on the children and from discussing these proceedings with or in the hearing of the children other than to communicate to the children the effect of the orders on the children’s arrangements.
At the conclusion of the evidence given on 30 October 2015, the Father who is now self-represented, indicated that at least until the finalisation of the matter he would seek that the Mother’s time with X, Y and Z have someone in substantial attendance until it could be established the Mother’s mental health issues were stable.
It is the Father’s evidence that he believes that it is in the best interests of X, Y and Z that they live in his primary care and spend regular alternate weekend time with the Mother.
It is the Father’s evidence that he has a close and loving relationship with X, Y and Z and that they are happy and settled in his care.
It is the Father’s evidence that X, Y and Z love their Mother and that she loves him. However, it is his belief that the Mother’s mental health causes her particularly when under stress to become erratic and there are times when she is a risk to the children in that she is physically abusive of them, leaves them at home alone and allows them to partake in activities that are unsafe, for example X being allowed to mow the lawn in his bare feet.
The Father adamantly denies the Mother’s allegations that he in anyway cross examines the children and particularly X and Y about the Mother’s care of them.
It is the Father’s evidence that the matters he has reported to the Department of Health and Human Services and set out in his affidavit material is as a direct result of X and Y voluntarily telling him of these matters.
The Father also categorically denies the Mother’s allegations that he or any members of his family denigrate the Mother to X, Y and Z or that he is deliberately trying to undermine their relationship with the Mother.
It is Father’s evidence that he wants the children to have an ongoing relationship with their Mother and that whenever he has restricted the time that X, Y and Z spend with the Mother it is as a direct result of his concerns that her mental health was such that she was behaving in a way that placed the children at risk.
It is the Father’s evidence that X, Y and Z are well settled with him in his parent’s home and that they enjoy a positive relationship not only with him but with his parents as well as extended family.
It is the Father’s evidence that contrary to the Mother’s allegations, there are not multiple people coming and going from his parents’ home because it is the base from which he conducts his business. Further he denies he is often unavailable to X, Y and Z because of the demands of his business but rather their home is well structured and settled.
The Father reports an active involvement in the lives of and activities of X, Y and Z.
It is the Father’s evidence that he and all the children including Z take golf lessons together every Thursday and that he is also involved in X’s cricket and all the children’s activities.
It is the Father’s evidence that he has not deliberately emotionally manipulated the Mother by sending her inflammatory or unnecessary text messages but that rather he responds to the Mother’s text messages, many of which are abusive and inflammatory.
Dr G
Dr G is a consultant psychiatrist who undertook a psychiatric assessment of the Wife.
Dr G’s assessment is annexed to his affidavit sworn 3 December 2014. Dr G was not required for cross examination by either party or the Independent Children’s Lawyer.
Under the heading diagnosis Dr G reports as follows:
“The previous diagnosis appears to have been Anorexia Nervosa and substance use disorder.
Both conditions appear to have remitted with appropriate psychiatric treatment.
Ms Vaughan does not appear to be currently suffering from a psychiatric condition.”
Under the heading prognosis Dr G reports:
“Given Ms Vaughan’s premorbid strengths and ongoing supports, as well as her apparent insight, motivation and help seeking behaviours it appears unlikely that she is at major risk of future behavioural or psychiatric issues related to a psychiatric disorder.
Conversely, if she were to find herself in a situation of extraordinary stressors there would be a risk of her developing significant anxiety symptoms again at which time it would be expected that she would seek appropriate help, rather than resorting to ad hoc strategies such as obtaining Benzodiazepines from a friend.
Finally, under the heading conclusions, Dr G reports as follows:
“This examiner has not seen Mr Vaughan or the children and is unable to fully comment upon Mr Vaughan’s version of the events or the dynamics of the relationships between the children and their Mother.
Notwithstanding, if one takes at face value the version of events provided by Ms Vaughan, then the chances of her relapsing would appear to be minimal, and there would appear to be insufficient evidence to suggest that ongoing care by Ms Vaughan of her children is contra-indicated for psychiatric reasons.
1)In Ms Vaughan’s version, psychiatric disorder would not appear to be a significant factor with regard to her ability to provide positive parenting and have her children live with her or spend time with her unsupervised and overnight, at this point in time.
Ms Vaughan’s version of the events appears to be supported by her treating psychiatrist.
2)This examiners only proviso is that if it were proven that Ms Vaughan ‘doped’ Mr Vaughan, as he described, it would necessarily follow that Ms Vaughan has been suffering from either a personality disorder or significant erratic and unpredictable personality traits, which would have the potential to impact significantly upon future relationships and the care of her children.
In Mr Vaughan’s version of events, there would appear to be concerns regarding Ms Vaughan’s ability to provide positive parenting without impulsive behaviour.
As stated previously, Ms Vaughan claims that the medical practitioner neighbour, who was involved in those specific events, has stated that he would support Ms Vaughan’s version of the events.
Ms B
Ms B is a mediator and psychologist who prepared two family reports in this matter, the first dated 4 December 2014 annexed to her affidavit sworn 5 December 2014 and the second dated 10 August 2015. Ms B also gave viva voce evidence at the final hearing of this matter.
In her report dated 4 December 2014 (‘the first report’) under the heading conclusion Ms B states the following:
55.The children have lived with their father since the parties’ separation. It is likely, as claimed by the mother, that she had been their primary carer. The assessment of the children strongly supported this claim as all three children were assessed to be and to have been primarily attached to her. That attachment was secure and the children, especially the younger two, Y and Z who are still only 4 years and 2 years old, respectively yearn and need to be reunited with their mother. X who is 8 years old, was also assessed as having had a secure attachment with his mother and given his distress, ruminations and possible anxiety or depression since the separation from her and while living with his father, equally needs to be returned to live in the security of his mother’s care. Significantly, there are strong indications that Z has had a disruption to her attachment formation, causing confusion and destabilisation. She is still in the primary attachment formation stage, from birth to around 3 years of age, and separation from her security figure for nearly 10 months of this critical period may have a lasting adverse effect on her capacity to attach, to feel secure and to bond in later life. Her clinginess with her mother and distress at having to leave her further highlight this child’s plight.
56. But for the issue of the mother’s mental health and allegations about her competency to care for the children, there would be no doubt from a psychological perspective and in considering all the factors in determining the children’s best interest, about the need to immediately return the children to the care of the mother.
57. Ms Vaughan’s behaviour and diagnosis of her condition have been well described by two psychiatrists as have the likely underlying causes which originally gave rise to her symptoms and subsequently triggered her more recent symptoms. These concern the diagnoses of Anorexia Nervosa, Poster-Traumatic Stress disorder and Benzodiazepine dependency. From my assessment of Ms Vaughan and prior to my discussion with two psychiatrists, I formed the opinion that Ms Vaughan has substantially improved, had an understanding and insight into her condition and made frank admissions about her behaviour and emotional state at the time. She can be said to have each of the major conditions as diagnosed under substantial control and with her insight, is able to continue to make further improvements. Her Anorexia Nervosa condition is improving and there is little to indicate cognitive dysfunction about her appearance, need to eat and most importantly the need to ensure that the children eat and to be a good role model for the children. Her addition is controlled, the doses continue to be reduced, she is aware of the symptoms which cause the cravings, is compliant with the medication regime and she regularly attends both her psychiatrist and treating general medical practitioner. She continues to have symptoms of anxiety and lack of self-confidence when faced with overpowering control, abuse and bullying. However, this is not at a debilitating or clinical level as she is competently able to work and have the confidence of her employers.
58. From my observations and assessment, I can conclude that Ms Vaughan poses no risk to the children and she would be a competent parent to the children. The only caveat is, if she was faced with similarly debilitating and prolonged stressors and feeling of helplessness without capacity to obtain relief and assistance. This situation is unlikely to occur as she intends to continue to receive therapy, has a good and supportive network, is working and in control of her life and finances and maintains a loving relationship with the children.
59. The reports, assessments and discussion with the two psychiatrists, Dr G and Dr K, confirm her prognosis as being positive and they too have few if any concerns about her capacity to continue or maintain her progress and her capacity to provide good parenting. There is one potential concern expressed by Dr G but he nevertheless maintains his recommendations about prognosis and that she us unlikely to be at a major risk of future behavioural or psychiatric risk issues related to a psychiatric disorder.
60. Mr Vaughan provided care for the children at a time of crisis. He has been assisted by his parent. Except for a period early in the separation, the children have continued to attend the school in the case of X, kindergarten for Y and Z has been cared for both at this home by him and his family as well as attending child care. He has also attempted to obtain support for himself and counselling for X and to some extent, Y. The children’s time with their mother has been minimal and while he had concerns about her behaviour in the earlier periods, he has been less than inclusive of the mother in decision making and other forms of involvement in relation to the children. He maintains a bitter and strongly negative view of Ms Vaughan, and this was reflected in his discussions about her and his involvement of the mother in children’s issue. While he alleged that the mother was manipulating the children about their future residence, from my interviews with the children, there were clear indications to the contrary and that he may have at least projected his own behaviour. X felt under pressure to support his father and caused his anxiety at interview, whereas Y spontaneously described what his father allegedly said and was not dissuaded from his course of needing to be reunited with his mother as the primary carer.
61. Both parents said they wanted the other to be substantially involved in the children’s lives. I am of the opinion that Ms Vaughan would promote the children’s relationship with their father but I have significant concerns about Mr Vaughan’s capacity to appropriately promote their relationship with their mother and involve her in decision making about the children.
62. Having regard to the issues as delineated concerning the mother’s competency to appropriately and safely parent the children, their psychological and attachment needs, and her capacity to better promote their relationship with the other parent, I recommend that the children live with their mother and spend time with their father. The children know, love and want to be with their mother and do not need a transition arrangement whereby they return to her care in a stepwise progression of time. The longer they are separated, especially for Z and Y, the more damage they suffer to their attachment and feelings of security.
63. I recommend that the children forthwith commence living with their mother. The children should spend time with their father on alterate weekends, initially from Friday afternoon until Sunday evening and one overnight in the other alternate week. As the children settle and Z and Y are older, in approximately 6 months, they can spend longer weekends in the alternate week from Friday until Monday morning.
64. Holidays can ultimately be shared and the number of consecutive nights may be increased as Z and Y are older. At present the number of nights with the father during holidays should be no more than 4 nights, commencing with the upcoming summer holidays and these 4 nights can be repeated each 2 weeks. A similar arrangement should continue for the term holidays for 2015. The summer holidays of 2015-2016 and 2016-2017 could be equally shared but with the children having a week about arrangement. The term holidays of one week with their father can commence in 2016.
Under the heading “the parents” in her report dated 10 August 2015 (“the second report”) Ms B states the following :
“9. The dynamics within this family and in particular between the two parties, to which I referred in the first Family Report, have escalated and become significantly worse. Ms Vaughan has a litany of complaints against the husband concerning withholding the children or taking the children away without proper agreement on two occasions (January and June), withholding them from school in March, manipulative and bullying behaviour toward her and manipulation of the children. Mr Vaughan made further complaints and notifications to authorities, including DHS regarding the mother’s alleged psychological illness in February and its impact on the children as well as alleging that she had damaged his car in late January. Additionally, notifications were then made in late February that the mother hit the boys X and Y. As a consequence, the parties were interviewed by DHS and the children were subject to interviews by (omitted) SOCIT. The mother sought that a welfare check be made by the police as the children had not attended school and they were withheld from her in February and March. The acrimony between the parties have become intense and each then during the interviews referred to text messages and alleged improper or threatening behaviour through their communications.
10. After the interviews for this report were conducted, I received multiple emails from the parties, a few at my request, of issues they had raised during the interviews. These emails continued to refer to their conflict, with allegations and counter allegations continuing to be made.”
In paragraph 11 her second report Ms B described the Mother as follows:
“11. Ms Vaughan again presented as being open and forthright. She was softly spoken and accommodating. However she had developed more confidence, was more assured though quiet in her presentation and clear about the important issues. She remained substantially focussed on the children’s welfare and their needs, and again spoke at length about the children. Her presentation clearly indicated that she had recovered from her previous symptoms and there were no indications that Ms Vaughan was not competent or psychologically unwell. On the contrary, her awareness and understanding of the children’s needs was strongly indicative of her degree of empathy and nurturing attitude.”
In relation to the interaction between the Mother and the Father, Ms B in paragraph 18 of her second report states as follows:
“18. Ms Vaughan has sent messages and too often engaged with Mr Vaughan either in response to what she perceives to be his manipulations or provocations or in making her point to him through pointed text messages. She has continued to react to these and it appears that she had not emotionally distanced herself from the husband….”
In relation to the Father, Ms B indicates in her second report that the Father told her that he is no longer bitter towards the Mother. He acknowledged previously being negative towards the Mother but that was a result of feeling hurt at that time.
Ms B indicates that the Father told her his change of attitude towards the Mother came about because she made great improvement and the improvement was when “she understood the children would be living with him equally and she stopped fighting for the children.”
Ms B notes the Father to claim to now be positive about the Mother, that he no longer hates her and that he speaks positively to the children by making comments such as “mummy looks well today.”
Ms B notes however that the Father’s emails to her after the interview continue to make or repeat allegations against the Mother and refer to them as a liar.
Ms B notes that the Father was strongly focused on presenting his view that the 50/50 resident arrangements were working and that they should continue into the future.
Ms B notes that the Father told her in an interview that the Independent Children’s Lawyer’s advice to him was that she agreed with the shared care arrangement continuing and she would be instructing her barrister as well as Ms B that this was her view.
Ms B indicates that subsequent to the interviews for the second family report, the Father emailed her to advise that he had received an email from the Independent Children’s Lawyer confirming she supported a shared care arrangement for the children.
Ms B indicates at paragraph 28 of her second report that the Father wrote to her that he had received an email from the Independent Children’s Lawyer. Ms B states the Father wrote:
“This email clearly indicates that “I have spoken to Ms B about your matter and provided her with my preliminary view. Her preliminary views as indicated to me over the phone, were that she will agree that the children remain as 50/50 shared care with both parents and equal parenting responsibilities.”
Ms B indicates that the Independent Children’s Lawyer did not speak to her about having a preliminary view and further when she contact the Independent Children’s Lawyer the Independent Children’s Lawyer denied providing Mr Vaughan with a view that she would agree to a 50/50 arrangement or that she would so instruct counsel without first having the second Family Report.
Ms B further notes that Mr Vaughan advised her that he would send her the report he had received from the Independent Children’s Lawyers, but he failed to do so.
I note the Independent Children’s Lawyer’s Outline of Case document in which she expresses a preliminary view supporting a continuation of the shared care arrangement was dated 10 August 2015, the same date as Ms B’s second report and therefore this document could not have been viewed by the parties prior to Ms B’s second report.
In her viva voce evidence Ms B described this behaviour of the Father to be manipulative.
In relation to her observations of children, Ms B makes the following observations at paragraph 43:
“ 43. The dynamics of the relationships between the children and their parents were similar to those previously observed for the first report but the problems were more accentuated. X has become even more conflicted and anxious, Y was less spontaneous with his Father and Z was said not to be developing as well as she might otherwise.”
Ms B is also concerned that the Father is unaware of, or less attentive to the children’s needs. She was most concerned about the Father’s response to Y’s emotional turbulence and his report to her of suffering nightmares. She describes the Father as being unempathetic and dismissive of Y’s distress and to blame the Mother for Y falsely reporting nightmares.
Ms B also makes the observation that she believes the Father to be unwilling to consider X’s emotional needs and his conflicted feelings about his parents and their separation.
Concerns as to whether the Mother is able to meet X, Y and Z’s emotional needs have also been well canvassed in this judgment.
There is no doubt that when the Mother is well she is a loving, caring and devoted parent who understands her children and the impact the parental separation has had on them.
The concern with the Mother is that if she becomes emotionally deregulated by the anxieties and stressors of her dysfunctional relationship with the Father and her perception that he is constantly attacking and undermining her parenting, it will impact on X, Y and Z.
The other major impact on X, Y and Z is the parent’s highly enmeshed and dysfunctional relationship to which they have been exposed since the parties’ separation. All three children are beginning to exhibit the damage that their exposure to this relationship is doing to their emotional and functional wellbeing.
X has been displaying serious behavioural problems both at school and outside school. He is caught in the middle of the conflict between the parties and the parties competing claims for his love and affection.
Y is starting to behave aggressively as he to gets more and more caught up in the parental conflict as he gets older.
The Mother reports Z’s behaviour to be regressing when with her in that she using baby talk, insisting on sleeping with her and not leaving her sight. In contrast the Father reports Z to be behaving appropriately. Ms B’s evidence is this behaviour is not at all surprising and reflects Z’s closeness to the Mother and her seeking the Mother’s nurture and love.
If both parties cannot disengage from each other, desist in their continuous and overwhelming acrimonious interactions and start focusing solely on being the separated parents of three much loved children, the long term emotional and psychological impact X, Y and Z are of real concern.
When this matter was before the Court on 30 October 2015, I made the observation in the Ex-Tempore judgment delivered at the conclusion of that day that if the parties had a better and more trusting relationship, the Mother could and should have been able to ring the Father and say “I am struggling, can you please take the kids for a couple of days?” The Father’s response should then have been “of course” and to acknowledge that in asking for his assistance is the Mother putting X, Y and Z’s best interest first and not take this as an opportunity to further his agenda to have the children live in his primary care and continue his campaign of denigrating the Mother’s mental health and her parenting capacity.
Section 60CC(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant
The Mother was born in (country omitted) and her family are all resident in the (country omitted). This means that she does not have her family around her to provide her with the support she needs whilst she continues to deal with her illnesses, the breakdown of her marriage and her ongoing struggles with the Father.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
the likely impact any proposed parenting order under this Part will have on that right;
This subsection is not relevant.
Section 60CC (3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
I am in no doubt that the parties in this matter love their children and are genuine in their desire to do what they think is best for them.
The difficulty is that the parties’ dysfunctional enmeshed relationship prevent them from always doing this.
The Father believes that the Mother is psychiatrically unwell and interprets anything that he is told by the children about what occurs in her household as proof of this belief. He believes all he is told by the children and does not hesitate to report his concerns to the Police, the DHHS and to use what he is told as a basis upon which to interrupt X, Y and Z’s time with the Mother.
The Mother feels under siege from the Father’s allegations and that she is constantly being required to defend her behaviour and to prove her parenting capacity.
As a result of this the Mother is often defensive. She is loath to concede that, like all parents, there are times when she is less than perfect, times when she feels overwhelmed by the demands of parenting her children and times when the stress of the continuing litigation overwhelm her. She is therefore reluctant to acknowledge the need for, or to ask for assistance when it is in both she and the children’s best interest that she do so.
The constant acrimonious and at times inflammatory communication between the parties, especially by text message fuel their mutual distrust and ensures there ongoing enmeshment.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
It is my understanding that both parties currently have applications for intervention orders within the state system.
The Mother has sought an Intervention Order against the Father arising from the incident on 27 September 2015 when she alleges the Father broke into her home and forcibly removed X.
The Father has also sought an Intervention Order for the protection of the children arising from the alleged abuse perpetrated by the mother on the children in the same period.
I am unaware of the current status of both those applications.
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
It is usually the ambition of this Court in parenting matters to make orders that will see the finalisation of proceedings in relation to the arrangements for children.
This is a matter where it is of vital importance for X, Y and Z’s wellbeing that the finalisation of this matter ends the litigation between the parties.
The Father has demonstrated through the entirety of these proceedings that he will interpret any adverse comments made by the children about the Mother’s parenting as being indicative of the Mother being psychiatrically unwell and therefore the children being at risk. He then unilaterally suspends all time between the Mother and the children.
The Court must therefore have a concern that whatever the decision is in this matter, the Father will continue to assume the worst of the Mother’s parenting and interfere with whatever Orders the Court have put in place, leading to further litigation.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
It is the proposal of the Independent Children’s Lawyer that if the Court finds that the Mother does not pose a risk to the children then Orders be made for the parties to have equal shared parental responsibility for X, Y and Z, that they live with the Mother and spend time with the Husband each alternate weekend from after school to 5:00pm Sunday and for half of the school holidays as well as special occasions.
The Independent Children’s Lawyer proposes that Orders be made requiring the Mother to continue to attend upon Dr K and follow all lawful directions given by Dr K in relation to her ongoing attendance and treatment and that she authorise Dr K to notify the Father in the event the she fails to attend upon Dr K as reasonably requested or if Dr K formed the view that the Mother poses a risk to the children.
It is the Independent Children’s Lawyer proposal that in the event the Court finds that the Mother poses an unacceptable risk to X, Y and Z if they live in her primary care, orders be made that they live in the Father’s primary care and spend alternate weekends and half holidays and special occasions with the Mother.
Presumption of Equal Shared Parental Responsibility
Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents are engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for that child.
In this matter both parties are seeking Orders that they have equal shared parental responsibility for X, Y and Z. This is supported by the Independent Children’s Lawyer.
The concern that the Court has in relation to much of the parties’ communication has been clearly set out in this judgment.
However, despite the parties’ poor communication, there have also been many occasions where the parties have been able to cooperate in the best interests of X, Y and Z.
An example of this is when the parties attended (omitted) Hospital together when X had an allergic reaction. They behaved towards each other in a civil and cooperative way albeit the subsequent incident regarding the Father’s hair cut to some degree undermined what was otherwise an appropriate interaction.
It will clearly be in X, Y and Z’s best interests for both parties to jointly make the important decisions about their care going forward. Despite their difficulties, the Court is satisfied that the parties will be able to do so particularly if their focus is on the best interests of their children and not their own disintegrating and dysfunctional relationship.
Accordingly, the Court is satisfied that the presumption for equal shared parental responsibility has not been rebutted and orders will be made for the parties to have equal shared parental responsibility for X, Y and Z.
Consideration of Equal Time or Substantial and Significant Time
When parties have equal shared parental responsibility for a child, section 60DAA of the Act requires the Court to consider the child spending equal time, or substantial and significant time with each parent.
The Mother is seeking Orders that X, Y and Z live with her and spend alternate weekend and holiday time with the Father.
Whilst the Father’s initial application was for there to be a continuation of the current living arrangements whereby X, Y and Z live equally with each of the parties, at the conclusion of the evidence he sought that Orders be made that they live primarily in his care and spend alternate weekend and holiday time with the Mother.
The preliminary view of the Independent Children’s Lawyer at the commencement of the hearing was that there should be a continuation of the equal time arrangements. She too now is proposing that X, Y and Z live in the primary care of one of the parties and spend alternate weekend and holiday time with the other parent.
As can be seen from these proposals, neither parent at this time is putting forward a proposal that would see X, Y and Z spending significant and substantial time as defined under section 65DA(5) of the Act. However both are proposing that there be regular and consistent time between the non-resident parent and the children, at least until Z is five years of age.
Given the parties’ evidence and the evidence of Ms B it is apparent that an order for equal time is not in X, Y and Z’s best interests. It is also apparent from the evidence of the parties and Ms B that at this time an order for significant and substantial time is not in X, Y and Z’s best interests though consideration for orders in these terms when Z is older could be considered.
Conclusion
This matter relates to what should be the future living arrangements for the parties’ three children, X nine years of age, Y five years of age and Z three years of age.
The parties separated acrimoniously in April 2014 at the height of the Mother’s mental health issues when she was suffering from Benzodiazepine addiction and Anorexia Nervosa.
Given the serious concerns in relation to the Mother’s health at that time, X, Y and Z lived in the Father’s primary care and spent regular supervised time with the Mother.
To her credit, the Mother sought and actively engaged in the appropriate psychiatric assistance such that by December 2014 orders were made by consent which put in place arrangements for X, Y and Z to live in a shared care arrangement between both their parents, there being no requirement for any supervision when living with the Mother.
Both parties now seek that X, Y and Z live in their primary care and spend relatively limited time with the other parent on alternate weekends and for half holidays and special occasions.
It is the clear evidence of the report writer, Ms B that it is not in the best interests of X, Y and Z that they continue to live in a shared care arrangement with the parties because of the parties’ conflicted relationship and its adverse impact on the children.
It is Ms B’s recommendation that if the Court is satisfied that the Mother does not pose a risk to the children they live in the Mother’s primary care and spend alternate weekends and holiday time with the Father.
It is Ms B’s evidence that all three children’s primary attachment is to the Mother and disruption of that primary attachment, particularly for Y and Z has caused them considerable emotional damage. It is Ms B’s evidence that it is vital X, Y and Z resume living in the Mother’s primary care as soon as possible to enable the reparation of that relationship which will ensure their emotional wellbeing and development going forward.
Ms B raises concerns about the Father’s parenting and in particular sees him to be manipulative, to be overly involving the children and particularly X in his desired outcomes and in encouraging them to exaggerate and over report alleged inadequacies of the Mother’s parenting.
It is Ms B’s evidence however that if the Court is of the view that the Mother’s mental health and in particular certain aspects of her behaviour post separation are such that she can be seen to be of risk to the children, then the children should live in the Father’s primary care and it would be a matter for the Court as to what time, if any, they spend with the Mother.
The Father is clearly of the view that the Mother continues to be psychiatrically unstable and that when she is unwell, she poses a risk to the children such that they should not live in her primary care.
During the running of this matter there was a particular incident that took on, possibly, disproportionate importance. That was whether the Mother threw paint thinner over the Father’s car in the early hours of Saturday 24 January 2015 over the Australia Day long weekend.
The Father is unshakeable in his belief that it was the Mother who perpetrated this criminal act and believes that the very inconclusive CCTV footage of the incident substantiates his belief in this regard.
The Mother denies categorically that she threw paint thinner on the Father’s cars and says it was not possible for her to have done so as she was in (omitted) with X, Y and Z for the entirety of the Australia Day long weekend.
The independent evidence in relation to the Mother’s whereabouts on this weekend is such that I have made a finding that I do not accept the Mother was in (omitted) for the entirety of the weekend but rather she returned to Melbourne with the children on the evening of Saturday 24 January 2015.
The Father suggests that the Mother’s untruthfulness as to her whereabouts on that weekend must lead to a finding that the Mother is responsible for the criminal vandalism which occurred to his vehicles.
Although I harbour serious misgivings regarding the Mother’s denial as to any involvement in this crime, I find I cannot be satisfied to the requisite standard that the Mother was involved. The allegation is very serious and must be considered at the higher end of the balance of probabilities.
As there is no corroborative evidence of the Mother’s involvement in this crime any finding she was involved would be based on innuendo, circumstance and suspicion. I have therefore formed the view that I am not in a position to make the finding that it was the Mother who vandalised the Father’s cars.
When giving her viva voce evidence Ms B was asked whether she would change her recommendations that X, Y and Z live primarily with the Mother if the Court was to make a finding that the Mother had lied and she had in fact vandalised the Father’s car.
At the time of the giving of her evidence, those in the courtroom, including me, understood Ms B’s answer to this question to be that if the Court were to make a finding the Mother had vandalised the Father’s car then her recommendation would be that X, Y and Z live with the Father.
However, a close reading of the transcript of Ms B’s evidence when answering the question shows that this was not what Ms B’s response to that question was.
It is Ms B’s evidence that whilst it would be very hard to get past a finding the Mother vandalised the cars and make some kind of recommendation, she would need to further explore why the Mother lied and what was going on for the Mother at the time of the incident.
Ms B notes that the Mother was already known to be in an anxious state at that time, and that she can be very reactive. It is Ms B’s assessment that she does not believe that this incident falls into category where the Mother should be considered dangerous to the children.
It is Ms B’s evidence that if the Mother is now stable, as is the evidence of Dr K, then the children are much more stable with the Mother and the stability and welfare of X, Y and Z continues to be her primary concern in this matter.
It is Ms B’s evidence that the only basis upon which she would recommend the children live with the Father would be in the event that the Court were to find that the Mother is dangerous and is genuinely a risk to the children.
Whilst the judgment in this matter was pending, the Father filed an urgent Application in a Case seeking that all orders for the Mother to spend unsupervised time with X, Y and Z be suspended because of concerns he held about the Mother’s mental health, her behaviours over late September 2015 and because of allegations made by X that the Mother had punched him to the side of the head.
The Father’s allegations were denied by the Mother and the Court was again faced with a situation where the Father makes allegations which the Mother denies i.e. “he said/she said”.
From the parties affidavits filed in relation to the Application filed by the Father, it was apparent there were independent witnesses to many of the alleged events that occurred in September 2015. At the direction of the Court, the Independent Children’s Lawyer subpoenaed the relevant independent witnesses who were able to give evidence to the Court on 30 October 2015.
It became apparent from the evidence of the independent witnesses and in particular Ms L and Ms M that in the period 23, 24, 25, 26 September 2015 during which time X, Y and Z were in the Mother’s care the stressors of awaiting a decision in this case, difficulties in X’s behaviour and the ongoing dysfunctional relationship between the Mother and the Father was such that the Mother’s levels of anxiety increased to the stage where she became emotionally deregulated and began to behave erratically.
Ms M contacted both the Mother’s treating counsellor and treating psychiatrist who in turn were sufficiently concerned by Ms M’s description of the Mother’s behaviour that the Mother’s counsellor Ms I dialled 000 and an ambulance and police attended at the Mother’s home and for her psychiatrist Dr K made a report to DHHS that she was concerned that the Mother’s emotional state was sufficiently deregulated that she may be at risk of exposing the children to unacceptable emotional harm.
During this time it would appear that the parties’ communication again broke down. There was confusion about when X, Y and Z would return to the Father’s care. There was an altercation at the Mother’s home when the Father attended to try and collect the children such that the police had to intervene and X, Y and Z were once again exposed to the parties’ overt conflict.
Upon the children returning to the Father’s care, X told the Father that the Mother had punched him or hit him in the head. As a result of this the Father made reports to both the police and DHHS. X and Y were then interviewed by both the Police and DHHS.
The Father also suspended all time between the Mother and the children. This reflected the advice he received from DHHS that if he harboured genuine concerns as to the children’s welfare in the care of their Mother that he should not return them to the Mother’s care.
DHHS investigated the allegation that the Mother had hit X on the head. On the basis that X disclosed to three separate professionals, the police, DHHS and his psychologist that the Mother had hit him to the right side of the head and that Y had also confirmed to the Department that the Mother had hit X, DHHS substantiated the allegation that the Mother had hit X.
DHHS are of the view however that whilst any form of physical punishment is inappropriate, the Mother does not present as a risk of harm to the children and DHHS have no issue with X, Y and Z continuing to spend unsupervised and overnight time with the Mother.
The real concern with the Mother’s behaviours in September 2015 is not that the Mother became overwhelmed with the stress and anxiety of the ongoing litigation and the continued conflicted and dysfunctional relationship with the Father as that is perfectly understandable, but rather her denial and lack of insight that she was becoming emotionally dysregulated and her resistance to the support and concern being offered and expressed by her friends and by her psychiatrist and counsellor when she was in this state.
Should the Mother again have an episode where her levels of anxiety and ability to cope with extreme stressors reach such a level that she becomes emotionally dysregulated the question that arises is will she recognise that she needs some assistance, particularly when X, Y and Z are in her care.
Dr K, who has been the Mothers psychiatrist for over four years is of the view that the Mother is psychiatrically well and is strongly of the opinion that the Mother does not pose a risk to the X, Y and Z.
When speaking to the DHHS after the September 2015 incidents
Dr K offered the opinion that the Mother is perfectly well 99 per cent of the time. The real question for this Court is whether the Mother poses a risk to X, Y and Z for that 1 per cent of the time when she is not perfectly well.
There is no doubt that the Mother was an extremely unwell woman in 2014.
There is no doubt that the Mother’s mental health has measurably improved throughout 2015 and that she is keeping her head above water in the context of overcoming her Anorexia Nervosa.
There is also no doubt that in the period prior to, at the time of and following the breakdown of the parties’ relationship there were behaviours by the Mother directed towards the Father that were grossly inappropriate.
What is also clear is that the Mother has been subjected to the Father’s continuing and unrelenting criticisms of her parenting and of his belief that she is psychiatrically unwell and as such unfit to parent their children other than on a supervised basis.
The Mother has felt the need to continually defend herself against these allegations and has been loath to acknowledge any behaviour that could be interpreted as confirming the Father’s belief as to her poor mental health or shortcomings as a parent.
Having considered all of the evidence, I am of the view that for the percentage of time when the Mother is unwell, she does not pose an unacceptable risk to X, Y and Z as long as she continues to be fully engaged with Dr K and follow all of Dr K’s reasonable directions as to ongoing attendance and treatment.
The view is also reinforced by the evidence of Dr K and Ms B that the finalisation of these proceedings, which have been a major stressor for the Mother, will see an improvement in the Mother’s health.
The impact on X, Y and Z of the disruption of their primary attachment to the Mother, the quite disturbing behaviours that are now being exhibited by X and the increasing concerns about Y’s behaviour together with Z’s regressive behaviours all paint a picture that not only isn’t the current shared care arrangement working for them but the ongoing disruption of their primary attachment relationship with the Mother will result in X, Y and X suffering long term emotional and psychological damage to them.
I am therefore of the view that when balancing the question of whether it is a greater risk for X, Y and Z to live in the primary care of the Mother or the primary care of the Father that it would on balance be of greater risk to the children’s psychological and emotional well-being if they were to live in the Father’s primary care.
As such Orders will be made for X, Y and Z to live with the Mother and for them to spend alternate weekends with the Father.
It is Ms B’s evidence that there should be no increase in the time they spend with the Father until Z is five years of age. Whilst I accept Ms B’s reasoning in this regard, X and Y are that much older than Z and as such much more able to spend longer periods away from their primary carer. I am of the view that as long as Z is with her brothers she will manage an increase in the time with her Father from the age of four. Accordingly Orders will be made to reflect an increase in the time between X, Y and Z and the Father so that by the time Z is six and has started school X, Y and Z will spend time with the Father for four nights in each fortnight in a single block.
Ms B also recommends that there should be a very gradual build-up of holiday time between the children and their Father so that it is only by the 2017/2018 long summer holidays that they spend a full week with their Father.
Again, whilst appreciating Ms B’s reasoning I am of the view that holiday time can be built up such that they can spend a full week with the Father by the 2016/2017 long summer vacation holidays.
As noted, it will be of vital importance that the Mother continues to fully engage with Dr K for as long and with such frequency as Dr K requests. The Mother clearly needs to work at overcoming her Anorexia Nervosa and more importantly to ensure she has the supports in place so that she better manages the stressors and increasing anxiety that she did in September of this year.
To that end, the Mother will be ordered to continue to attend upon Dr K as directed by her and authorise Dr K to contact the Father in the event the Mother does not follow her reasonable directions in relation to ongoing attendance upon her and/or take appropriate medications. Further the Mother is to authorise Dr K to contact the Father if Dr K forms the view that the Mother’s health is such that she poses a risk to X, Y and Z.
What is absolutely apparent from the evidence in this case is that X, Y and Z need to be protected from the parties’ ongoing conflicted and dysfunctional relationship and afforded the opportunity by both her parents to a level of ongoing stability in relation to their living arrangements.
To that end, if the Father is genuinely concerned about the welfare of X, Y and Z in their Mother’s care he is encouraged to not unilaterally interrupt their living arrangements but to bring an urgent application to this Court so that the circumstances can be properly investigated and a decision made as to whether X, Y and Z’s living arrangements should be adjusted.
An Order will be made that in the event either party wishes to challenge the current living arrangements that these Orders put in place that they are at liberty to bring an urgent application before the Court and any such application should be listed before me, if at all possible.
Finally, what is absolutely apparent from the reports from Ms B, from Dr K and from DHHS is that the biggest risk to X, Y and Z is their ongoing exposure to the parental conflict. What X, Y and Z desperately need is for the parties’ to come to terms with the breakdown of their relationship, to break what is their unhealthy and dysfunctional enmeshment and to genuinely make every endeavour to find a way forward that enables them to focus on being X, Y and Z’s parents rather than the embittered and angry former partners that is their current relationship.
I certify that the preceding five hundred and seven (507) paragraphs are a true copy of the reasons for judgment of Judge Bender.
Associate:
Date: 11 December 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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Jurisdiction
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