Walters and Walters
[2008] FMCAfam 1262
•14 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WALTERS & WALTERS | [2008] FMCAfam 1262 |
| FAMILY LAW – Parenting – schooling issues – depressive illness. |
| Family Law Act 1975, ss.60CA, 60CC(2)(3), 61DA(1), 61DAA(2), 65D Family Law Amendment (Shared Parental Responsibility) Act 2006 |
| Applicant: | MR WALTERS |
| Respondent: | MS WALTERS |
| File Number: | MLC 7458 of 2007 |
| Judgment of: | Connolly FM |
| Hearing dates: | 11, 12, 13 November 2008 |
| Date of Last Submission: | 13 November 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 14 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr K. MacFarlane |
| Solicitors for the Applicant: | Harwood Andrews Solicitors |
| Counsel for the Respondent: | Mr D. E. Whitchurch |
| Solicitors for the Respondent: | Samantha Ward Pty |
ORDERS
All previous orders be discharged save for paragraph 2.1 and 2.2.1 and 2.2.2 of the orders made 5 March 2008 which paragraph shall be discharged as from the first day of the new school year in 2009.
The husband and the wife have equal shared parental responsibility for the child [X] born in 2003.
That as from the commencement of the new school year in 2009 the child live with the wife.
That the child spend time with the husband as follows:
(a)each alternate week from after school Monday until before school Wednesday commencing in 2009;
(b)each other alternate week from after school Friday until before school Tuesday commencing in 2009;
(c)
(i) for one half of the Christmas school vacation at times to be agreed and failing agreement from 10:00am the day after school finishes for the first half of such holiday in even-numbered years (save for the period over Christmas Day and Boxing Day) and for the second half to conclude at 12 midday the day before the new school year commences in odd-numbered years;
(ii) from 3:00pm Christmas Day until 5:00pm Boxing Day in 2008 and each alternate year thereafter; and from 12 noon Christmas Eve until 3:00pm Christmas Day in 2009 and each alternate year thereafter.
(d)for one half in the school term vacations at times to be agreed and failing agreement for the first half in even-numbered years and the second half in odd-numbered years;
(e)from 5:00pm the day before Father’s Day until 5:00pm on Father’s Day;
(f)3 hours on either the child or the father’s birthday at times to be agreed and failing agreement, from after school at 4:00pm (if not a school day) until 7:00pm;
(g)at other times as agreed.
That in the event that Mother’s Day, the mother’s birthday or the child’s birthday falls when the child is otherwise in the husband’s care, the time spent with the father be suspended in the case of Mother’s Day from 5:00pm on the day before Mother’s Day until 5:00pm Mother’s Day and in the case of the birthdays from after school at 4:00pm until 7:00pm.
That if at any time during the periods when the child is living with the mother or spending time with the father pursuant to these orders either is unable to care for the child due to ill health or any other reason, the child shall be returned to the other parent to remain in his or her care until such time as the other parent is able to care for the child.
The parties shall provide to each other their address and telephone number and keep each other informed at all times of any change thereto.
Changeover shall take place as agreed and failing agreement, at the child’s school or at the mother’s home.
The parties shall forthwith do all acts and things and sign all necessary documents to enrol the child at the [D] Primary School.
Each party shall authorise the child’s medical practitioner to discuss with the other parent the child’s health and medical treatment.
Each party shall authorise the child’s school to provide to the other parent copies of all school reports, notices and photographs at their respective expense.
Neither party shall denigrate the other to or in the presence of the child.
The wife shall authorise her treating doctor, in the event of a deterioration in her health or a failure to attend and follow medical advice, to forward to the husband or his solicitor a report in writing about her state of health.
The wife shall consult with her General Medical Practitioner every
3 months and with her treating psychiatrist every 6 months or as otherwise recommended by her treating psychiatrist.
The husband and wife shall attend a post separation parenting program at a major welfare agency such as may be agreed or Relationships Australia, Centacare or Anglicare.
IT IS NOTED that publication of this judgment under the pseudonym Walters & Walters is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT GEELONG |
MLC 7458 of 2007
| MR WALTERS |
Applicant
And
| MS WALTERS |
Respondent
REASONS FOR JUDGMENT
The documents
This is an extempore judgment arising out of competing residence applications with respect to the child [X], born in 2003. The husband's initiating application is contained in his application filed in the Magistrates Court at Geelong on 22 May 2007. The wife's response was filed in this court on 11 November 2008. The substantive orders sought by the husband and the wife, however, are set out in minutes of proposed orders sought and filed at the start of the hearing.
Essentially, the husband in his minute - which was amended during the running of the case - sought that the child reside with him seven days and the wife seven days in each fortnight. Additionally, he wanted orders that [X] attend the [G] Primary School commencing in 2009. The wife on the other hand asked for orders to the effect that the child live with her eight days and the husband six in each fortnight, and that [X] attend the [D] Primary School. Each of the parties also wanted orders with respect to school holidays, special days, and a number of specific-issues orders.
The husband's application was supported by his affidavit sworn on 21 May 2007 and filed on 23 May 2007 in the state Magistrates Court at Geelong; his affidavit sworn on 7 November 2008 and filed on 11 November 2008 in this court at the time the proceedings commenced; the affidavit of Ms E sworn on 7 November 2008 and filed on 11 November 2008, again at the commencement of the hearing; and finally the affidavit of Mr W, again sworn on 7 November and filed at the start of the proceedings.
The wife's response was supported by her affidavit sworn on 5 March 2008 and filed on 5 November 2008; the wife's further affidavit sworn on 10 November 2008 and filed on 11 November 2008 when the proceedings commenced; the affidavit of the wife's father, Mr K, sworn 11 November 2008 and filed on the same day; and the affidavit of Dr C attaching his report of 5 December 2007, which was filed in the court at the hearing on 11 November 2008.
The background
Additionally, there was a report prepared by Winsome Thomas pursuant to an order of this court on 26 May 2008. The report is dated 30 September 2008.
The husband is 37 years of age. He was born in 1971. He is a [occupation omitted] in the Geelong area, where he works on a full‑time basis. He has formed a new relationship with Ms E. They lived together from February 2007 until the middle of 2008, when
Ms E moved to Adelaide to further her career in [occupation omitted]. Her goal is to obtain a position at [omitted] University in Geelong by early next year, and she will then resume living with the husband in the house that he owns at [G] and which was the former matrimonial home.
The wife is 36. She was born in 1972 and works as a part‑time [in the hospitality industry] at [P], a position she has held for some three weeks. She lives in rented accommodation at [D] and has recently purchased an old 1989 Ford motor vehicle. [D] is about 30 kilometres from [G] and involves about half an hour's travelling time by car.
Ms Walters has suffered from a depressive illness since her early 20s and had in 1999, before the parties met, made an attempt on her own life by cutting her wrists. As a result of that incident she spent some three weeks at the Fremantle Hospital.
These parties met in 2002, married on 19 April 2003 and separated in the month of July, 2006. There is one child of the relationship, [X], born in 2003 and now aged five years. [X] initially lived with his mother following separation until, as a result of his mother's illness, orders were made on 6 June and 20 June 2007 in the Geelong Magistrates Court that he live with his father and spend time with his mother from 10 am on Friday until 5 pm on Sunday each week. Changeover was to be effected by the husband at the wife's home in [D]; otherwise, the proceedings were transferred to the Federal Magistrates Court sittings at Geelong.
Those orders were extended by agreement on 5 March 2008, and since then, [X] has spent time with the wife each alternate weekend from 11:45 am Thursday to 5:00 pm Sunday, and in each other week from 11:45 am Thursday until 5:00 pm Friday. There was also a week during the term school holidays.
At the time these orders were made, [X] had been enrolled at the [omitted] kindergarten at [G], and the wife was to collect him from the commencement of the time spent, and the husband to collect him from the wife's premises at the conclusion. Those arrangements have continued in effect until recently, with the husband being assisted in caring for [X] by his mother and sister.
The specific events that led to the change of living arrangements for [X] were, firstly, shortly after the parties separated in July of 2006 but while they were still living under the one roof, the wife took an overdose of prescribed medication and the husband took her to Geelong Hospital, where she was discharged the next day.
Then during the Easter vacation in 2007 when the husband was returning [X] to the wife's care, he found a note on the front door written by the wife indicating that she had been admitted to the detox unit at St Vincent's Hospital in Melbourne. Following this episode, the husband had full‑time care of [X] for the next month.
Finally, there was another incident that occurred on the night of 17 May 2007. The husband received a phone call from the wife's sister telling him that the wife had taken another overdose of prescribed medication. The husband again made arrangements for the wife to be taken by ambulance to the Geelong Hospital and she was discharged on 19 May.
It is as a result of the husband's concern for the arrangements for [X] at that time, that he initiated these proceedings.
The law
The law with respect to the determination of children's issues has recently been amended with the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006. It is now incumbent on the Court to decide matters in accordance with that legislation. Section 65D of the Family Law Act 1975 provides that a court may make such order as it thinks proper subject to section 61DA, presumption of equal shared parental responsibility, when making parenting orders.
Section 61DA(1) states that where an order provides that a child's parents are to have equal shared parental responsibility, the Court must:
(a) consider whether the child spending equal time with each parent is in the best interests of the child; and
(b) consider whether spending equal time is reasonably practical; and
(c) consider making such an order.
Section 61DAA(2) states that if the Court does not make an order for equal time in those circumstances, it must consider whether the child spending substantial and significant time with each parent would be in the child's best interests, and whether spending substantial and significant time is reasonably practical.
The Court must consider making such an order. The legislation also defines what is meant by "substantial and significant time" and the matters to be taken into account when considering whether it is reasonably practical to make such an order.
In deciding to make a particular parenting order in relation to a child, "a court must regard the best interests of the child as the paramount consideration" (section 60CA). However, in determining what is in the best interests of a child (section 60CC), the legislation has created a set of primary and additional considerations, section 60CC(2) and section 60CC(3):
60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
60CC(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) 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
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(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;
(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;
any other fact or circumstance that the court thinks is relevant.
I adopt and incorporate these sections into my judgment.
With respect to the issue of what are the appropriate living arrangements for [X], the parties argue should be determined on a relatively small number of issues. Both parents love [X] and are loved by him, and the criticisms made against each parent are relatively confined.
In relation to the evidence given by each of the parties, I was satisfied that the mother was open and truthful even when answers did not assist her cause. The father on the other hand was somewhat evasive about some issues and particularly those relating to his partner, Ms E.
The husband says that, given the wife's behaviour arising from her binge drinking and attempted suicides, she still poses a significant risk to [X] in that there may be a possible relapse. While I have not detailed all of the wife's behaviour set out in the affidavit material, she clearly accepted it had been inappropriate and that her actions in the time leading up to and immediately following the separation and up until May of 2007 had clearly put [X] at risk.
Her evidence and that of the psychiatrist, Dr C, clearly indicate that she has made every endeavour to rehabilitate herself. Her evidence is that she has matured since [X] has been cared for primarily by his father. She has reduced her drinking dramatically, has complied with medication and has endeavoured to get her life back together. She indicates that the counselling that she attended since then and which was recommended to her through St Vincent's Hospital has been of enormous assistance.
Dr C, who prepared a report in December of 2007, was satisfied that she is capable of properly looking after her son, with the proviso that she continue to be the subject of psychiatric supervision or review periodically, and he believes that her son is unlikely to be at risk in the future if he is returned to her care. I adopt and incorporate pages 5, 6, 7 and 8 of his report into my reasons for judgment. The report on paragraph 5 and the part that I incorporate starts at the bottom of page 5, Mental State Examination. I include all of page 6 and page 7, although the last paragraph on page 7 at the top of page relates to the psychiatrist's evidence about some previous trial that he had been involved in and indicating his understanding of the fact that treating doctors are reluctant to provide evidence. The paragraphs are as follows:
MENTAL STATE EXAMINATION
Presentation
This is a young woman of a medium build, neatly dressed in skirt and blouse wearing makeup, well spoken, smiling, frank with no signs of any emotional distress.
Thought Content
After this court case I want to get a job and I can take [X] to crèche or kindergarten. I think I have justification to get frustrated and angry at times in the present circumstances.
Orientation
Is correct in time, place and person.
Affect
Feeling quite good and stable on the medication I am taking. I still do get a bit upset at times but I am now in control.
Preoccupations
I couldn’t talk about this without floods of tears previously, but now I feel more comfortable and able to express myself coherently.
Cognition
The patient presents as functioning normally in cognitive capabilities.
Insight and Judgement
Seem to be within normal parameters
Perception
There is no indication of any psychotic disorder or distortion of reality.
Intelligence
Average or better.
Memory
Is pretty good she says, although at some times there are things she would like to forget.
Concentration
Is satisfactory.
Organic or Neurological Features
There is no indication that there is any organic basis for any symptoms or behaviour, despite the abnormal EEG when she was 8 years old. This has never been repeated, however it is doubtful whether she should be diagnosed with epilepsy despite her psychiatrist having recommenced her on Tegretol.
Lifestyle
She is living in a rented house and is self sufficient, but she is not able to drive because she lost her licence from drink driving in 2005 but will get it back in January 2008. She says she is not happy about having to have an immobiliser fitted when she does obtain another car. She lives 5 minutes walk from the shops locally and she travels by bus or other types of transport. She does have a 3 year old son living with her from Friday overnight through to Saturday. His father brings him and takes him back. She does some volunteer cookery centre about 4 hours a week. She has started to play lawn bowls. She reads papers and books. She does smoke about 6 cigarettes a day. She drinks about 5 beers about once a fortnight but denies any other drugs apart from as prescribed by her.
Personality
She is generally an outgoing person and says she is reliable 80% of the time and is very responsible when caring for her son, but she has been irresponsible in some of her behaviour.
ADAPTATION
She says she has matured since she lost the custody of her son and has been having counselling which she believes is helpful.
ATTITUDE TO HER PROBLEMS
She wants her son back and to raise him and get on with life in a stable way and she believes she can cope with this responsibility.
OPINION
Although I have had only one contact with this person, I would offer the following diagnostic labels:
Mood Disorder not otherwise specified – DSM IV 296.90, or alternatively Cyclothymic Disorder DSM IV Item 301.13.
She is attending a private psychiatrist and taking prescribed medications as listed above. She has admitted to binge drinking but now appears to have this under control since being treated at a detoxification unit and is having ongoing counselling.
She gives an indication that she is now leading a very stable, independent lifestyle and she is able to care for her son on a regular basis weekly, including overnight and is keen to take on full responsibility for his care and upbringing.
She now denies any thoughts of self harm or suicide, and although she has some feelings of anger and frustration, she indicates that she is in full control and that she would not intend to repeat any of her previous compulsive self -destructive or self- harming behaviours…
…In my opinion, your client is capable of properly looking after her son, with the proviso that she continues to be subject to psychiatric supervision or review periodically, and believe that her son is unlikely to be at risk in the future if he is returned to her care.
The contents of this report are true to the best of my knowledge and belief.
It is perhaps important to indicate that while the Dr C, when cross‑examined, indicated that he had recently retired, he had been in practice for some 50 years. He was formerly a lecturer at [omitted] University Department of Psychiatry, formerly a visiting psychiatrist at [omitted] Hospital and formerly a psychiatrist of the Victorian Mental Health Review Board, a very well qualified and very experience psychiatrist.
Further, Winsome Thomas, at paragraph 42 and 43 of her report says:
All the medical crises pertaining to Ms Walters appear to have been related to either the marital separation or the loss of [X] from her care. Stability seems to have established since May 2007.
She goes on in paragraph 43 to say:
The report by Dr C, consultant psychiatrist, dated 5 December 2007 states that in his opinion Ms Walters is capable of properly looking after her son with the proviso that she continues to be subject to the psychiatric supervision or review periodically and believes that her son is unlikely to be at risk in the future if he is returned to her care.
In addition to this she has been under the watchful eye of the husband who would, no doubt, have reported any repeat of her previous behaviour or any comment made by [X] that would support that. He in fact is asking the court to make orders that [X] spend equal time in each party's care and says that the eight/six arrangement proposed by the mother poses a greater risk for [X]. I do not accept that proposition in the circumstances.
I am required to consider making an order that the child spend equal time with each parent where an order provides, as here, that the parents have shared parental responsibility. I am required to consider whether that is in the best interests of the child. While the wife makes allegations of physical abuse during the marriage, these were not pursued by either party in cross‑examination and, in my view that was appropriate given the proposals advanced by each of them. However, there is one aspect of the husband's behaviour which the wife is critical of and that is the fact that she has not been introduced to Ms E, the husband's partner, nor was Ms E part of the report process. The report writer, Ms Thomas, was somewhat surprised by this when she was told that Ms E was part of the husband's household for 18 months prior to the middle of last year and that Ms E is optimistic of returning early in the New Year when she hopes to obtain a job at [omitted] University. Ms E also indicated that the relationship with Mr Walters was a permanent one and she hoped to have children eventually.
The husband's evidence was that he did not introduce Ms E to the wife because the wife did not want to have any contact with her. I did not accept that evidence but believed what the wife had to say in cross‑examination. She said she had been asking to meet her for 18 months and, "I wanted to meet the person who is looking after my son." She says that the husband replied, "You're a nutcase. I don't want you to meet her." The wife's version, in my view, is supported by Ms E in cross‑examination when she responded to the question:
"Mr Walters had not encouraged you to meet her?”
“No, because there were a lot of issues."
It seems to me that such behaviour by the husband shows a lack of insight into the effects that it might have on increasing the mother's anxiety. That was also the view espoused by Ms Thomas. While on one view this is a relatively minor criticism of the husband's responsibility as a parent, it is significant, given that the husband's stated concern for the mother's state of health. However, in my view, what is most significant in determining whose proposals better suit the child's best interest is what the counsellor says about [X] wanting a reversal of the current arrangements whereby he spends more time with his father. At paragraph 54 of the report the counsellor says:
[X] clearly expressed his view that he would like the current parenting arrangements to be reversed as he misses his mother. His views did not appear to emerge from having been coached. While he is quite young, he is a most articulate child. Some credence, therefore, should be given to his views. He appears to have a very strong and healthy bond with both parents. His need to spend more time with his mother, however, was clearly expressed and should be honoured. As little disturbance as possible to his attachment to his mother should be entertained. This is not surprising given that up until May of 2007 the mother was the primary carer.
Ms Thomas, in her report and in her oral evidence, went on to say that whatever arrangements were made with each parent, they needed to fit in with the routine of [X]. However, since the report was prepared there have been a number of changes. Firstly, the husband's mother, who played a significant part in assisting the father with [X]’s care, is in a very poor state of health herself and more significantly, as the end of the kindergarten year is near and next year he will be commencing school.
While this is a relatively finely balance question as to what is in [X]'s best interests, I am satisfied that the mother's proposals better suit [X]'s best interests. He is, according to the counsellor, a very articulate five‑year‑old and has made it clear that he wants to spend the majority of time with his mother. In addition the mother works part‑time and has much greater flexibility to be with [X] during those times he is not at school.
In all the circumstances I intend to make the order with respect to the living arrangements that are sought by the mother.
The final matter for determination is that of which school [X] should attend. Firstly, I accept the mother's evidence that she agreed to [X]'s attending [G] school being predicated on the ground that the husband was successful in his application at that stage that the child live mainly with him. This seems to be supported by what Mr Walters said to the counsellor in paragraph of the report that Ms Walters may object to his having enrolled [X] at the [G] school. That is more so when considered with the wife's evidence, which I also accepted, that she had in fact enrolled [X] at [D] prior to the husband's enrolment of [X] at [G].
In any event, it is clear that the parties' current positions are opposed. It is the wife's argument that given the more flexible hours and given that six out of 10 school days each fortnight will be while [X] is in her care, that it will involve the child and the wife in less travelling time for him to attend the [D] school.
The husband, on the other hand, argues that, given the wife's state of health and the possibility of a relapse, it would provide more stability, if such an event occurred, if he were in a school closer to his father. It was also put strongly on his behalf that it would be much easier for [X] to commence school with friends and peers that he has made at kindergarten. While there is no evidence as to who or what friends he has made,
I accept that for the well-adjusted, happy little boy that he is, he would have numerous friends and that a good number would be attending [G].However, what is significant, in my view, is that this little boy, who the counsellor described in paragraph 45 as resilient and independent and demonstrates a strong capacity to engage with others, will adjust comfortably with other children who commence school at the same time as he. He will also have two of his cousins, albeit in different classes, to provide support and in attending [D] he will spend less time in a motor vehicle each week and will be attending school in the area where he spends most of his time.
Further, I am satisfied that the husband and his partner are in a far better position financially to be responsible for travelling to and from school. They are both involved in full‑time employment and do not suffer from the health problems that have affected the wife.
While I am also of the view that this is a relatively finely-balanced issue, in all the circumstances I am satisfied that [X]'s bests interests are best catered for by the wife's proposals and I intend to order accordingly.
The counselling that is recommended by the family report writer at paragraph 73 of her report, it is recommended that Mr Walters and
Ms Walters attend a post-separation parenting program at a major welfare agency such as Relationships Australia, Centrecare or Anglicare.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: Averil Manners
Date: 2 December 2008
0
0
2