Wastell & Merkel
[2024] FedCFamC1F 631
•18 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wastell & Merkel [2024] FedCFamC1F 631
File number: SYC 2246 of 2024 Judgment of: ALDRIDGE J Date of judgment: 18 September 2024 Catchwords: FAMILY LAW – PARENTING – Previous final parenting orders made in 2018 for the child to live with the mother – Child transitioned into the father’s care under interim consent orders in June 2024 – Mother concedes the child live with the father – Consideration of the mother’s mental health – Where the mother’s account of her mental health conflicts with the evidence – Findings of family violence perpetrated by the mother – Historical findings of family violence perpetrated by the father – Where the child is safe and secure in the father’s care – Clear views expressed by the child – Counterproductive to force the child to spend time with the mother against his wishes – Where supervision can ameliorate the risk of harm posed to the child by the mother – Orders for the child to live with the father and spend supervised time with the mother on specified dates and in accordance with the child’s wishes. Legislation: Family Law Act 1975 (Cth) s 60CC
Mental Health Act 2007 (NSW) s 20
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Div 2, s 4
Division: Division 1 First Instance Number of paragraphs: 80 Date of hearing: 22 & 25 July 2024 Place: Sydney Counsel for the Applicant: Ms Tabbernor Solicitor for the Applicant: Southern Waters Legal Counsel for the Respondent: Mr Jackson Solicitor for the Respondent: Coutts Lawyers & Conveyancers Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
SYC 2246 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WASTELL
Applicant
AND: MS MERKEL
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
18 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.All previous parenting Orders are hereby discharged including the final orders of 16 April 2018.
DECISION MAKING
2.The father has sole decision-making responsibility in relation to all major long term decisions for the child, B born 2012.
3.Prior to the father exercising sole decision-making responsibility, the father shall:
(a)Contact the mother via text message and inform her of the decision that he intends to make fourteen (14) days prior to making the decision;
(b)Consider any response provided by the mother; and
(c)Inform the mother of the decision made within seven (7) days following the making of the decision.
LIVE WITH AND SPEND TIME WITH
4.B live with the father.
Time in Sydney
5.From the date of these orders until B turns 14 years of age, and subject to his wishes, B shall spend time with the mother for a period of up to three (3) hours supervised by a Sydney metropolitan based contact service or centre as nominated and arranged by the father and paid for by the mother, on the following occasions:
(a)In 2024:
(i)Saturday 23 November 2024
(ii)Friday 20 December 2024 (Christmas visit)
(b)In 2025:
(i)Saturday 18 January 2025
(ii)Saturday 15 February 2025
(iii)Saturday 24 May 2025 (Mother’s Day visit)
(iv)Saturday 23 August 2025
(v)Saturday 22 November 2025
(vi)Friday 19 December 2025 (Christmas visit)
(c)In 2026:
(i)Saturday 17 January 2026
(ii)Saturday 21 February 2026
(iii)Saturday 2 May 2026 (Mother’s Day visit)
Additional time between the mother and B in Town C
6.From the date of these orders until B turns 14 years of age, and subject to his wishes, in the event that the mother is able to travel to Town C, she shall spend addition supervised time with B for a period of up to three (3) hours on the following occasions:
(a)In 2024:
(i)Saturday 5 October 2024
(b)In 2025:
(i)Saturday 25 March 2025
(ii)Saturday 5 July 2025
(iii)Saturday 4 October 2025
(c)In 2026:
(i)Saturday 28 March 2026
7.The mother’s additional time with B is conditional upon:
(a)The mother taking all steps to arrange and pay for the time to be supervised by M Family Services; and
(b)The mother giving the father no less than twenty eight (28) days notice in writing (text message being sufficient) that she is able to travel to Town C to avail herself of this time.
8.For the purposes of Orders 5–7, the father shall give the mother no less than three (3) days notice in writing (text message being sufficient) if the visit is not proceeding, and in the event that the father fails to comply with this order then he shall solely bear any cancellation fees from the supervision service or centre.
Time upon B turning 14 years of age
9.Upon B turning 14 years of age (2026), he shall spend time with the mother in accordance with his wishes, provided it is reasonably practicable and safe to do so, and for the purposes of this order time is to occur as follows:
(a)At times as agreed to between the parties in writing; and
(b)If there is no agreement with respect to the need for supervision, B’s time with his mother is to be supervised as follows:
(i)By an agreed third party; or
(ii)By a third party nominated by the father; or
(iii)By a contact centre within the Town C area to be nominated, arranged, and paid for by the mother.
10.Each party shall do all things and sign all documents as necessary to ensure that B’s time can be facilitated by the supervision centres and/or services pursuant to these orders.
COMMUNICATION
11.Commencing from the date of these orders until B turns 14 years of age, and subject to his wishes, the father shall facilitate B communicating with the mother via video conferencing platforms:
(a)On one (1) occasion per week but failing agreement on Tuesday at 5.00 pm (or any other time as agreed between the parties in writing); and
(b)At all other times as requested and initiated by B.
12.For the purposes of Order 11, the mother shall do all things to ensure that the call remains on speaker and the father is at liberty to monitor the conversations.
13.Except as provided for by these orders, the mother is restrained from sending text messages to B’s phone or communicating with him by any other electronic means, save that the mother is permitted to send B emails to an email address as provided to the mother by the father.
14.From the date B turns 14 years of age, B shall communicate via video or telephone call with the mother in lieu of Order 11, pursuant to his wishes at times requested and initiated by B.
CHANGE OF NAME
15.The father is at liberty to change the child’s name ‘B Merkel’ to ‘B Merkel Wastell’.
RESTRAINTS
16.The mother is restrained from attending B’s school or extra-curricular activities, except upon the father’s or B’s written invitation (via the father) and conditional upon the mother providing written notice (text message being sufficient) of her intended attendance to the father and the school as soon as practicable.
17.The mother is restrained from attending upon the D Church.
18.Without admissions, both parties are restrained from the following:
(a)Exposing B to family violence as defined in s 4AB of the Family Law Act 1975 (Cth) or causing or allowing B to remain in the presence of any person engaging in acts of family violence;
(b)Denigrating the other parent or member of the other parent’s family in the presence or hearing of B or causing or allowing B to remain in the presence of any persons denigrating the other parent or a member of the other parent’s family;
(c)Discussing these proceedings or the former proceedings with B, including any allegations raised in either proceedings;
(d)Attempting to illicit or suggest to B any views about his continued living arrangements;
(e)Attending upon the other party’s residential address without written invitation; and
(f)Showing B any material in these proceedings or discussing anything in relation to these proceedings, former proceedings, or allegations which are alleged to have occurred historically.
PASSPORTS AND INTERNATIONAL TRAVEL
19.Pursuant to s 11(1)(b) of the Australia Passport Act 2005 (Cth), the father be at liberty to solely apply and obtain a passport for B Merkel (also known as B Merkel Wastell) without the consent of the mother for:
(a)A passport to be issued for B;
(b)An updated passport to be issued for B at any time that a current passport expires or is due to expire; and
20.B’s passport be held by the father.
21.The father be permitted to travel with B outside of the Commonwealth of Australia at any time that does not interfere with B’s time with the mother pursuant to these orders, unless otherwise agreed to in writing.
B'S PSYCHOLOGIST
22.The father shall continue to take B to see a psychologist for as long as is recommended by the treating psychologist, and:
(a)The father pay the psychologist’s fees; and
(b)Leave is granted to the father to provide a copy of these orders, reasons for judgment and the Single Expert Report of Ms E to the psychologist to assist the psychologist in their treatment of B.
AUTHORITIES
23.Both parents are permitted to liaise directly with the child’s school and sporting bodies and receive school notices, information, newsletters, school reports and school photographs and any other necessary information about B’s progress at their sole cost.
24.Both parents are permitted to liaise directly with any medical practitioners or specialist B attends, and obtain information and copies of medical results at their sole cost.
25.Each parent will sign and provide such authorities and documents to the relevant entities as required to give effect to Orders 22 and 23.
SHARING OF INFORMATION
26.The father is to inform the mother and keep the mother advised in writing (text message being sufficient) of the following within seven (7) days:
(a)B becoming hospitalised;
(b)Changes in B’s contact details (if any);
(c)The names and contact details of medical practitioners and specialists B attends; and
(d)The name and contact details of any school in which B is enrolled within seven (7) days of enrolment.
27.Both parties are to provide one another their current email address, telephone number and residential address within seven (7) days of any change to their current details.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wastell & Merkel has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
Mr Wastell (“the father”) and Ms Merkel (“the mother”) are unable to agree on the parenting arrangements for their child, B, born 2012, so it falls to the Court to do so.
The central issue in the proceedings was the mother’s mental health and the impact, if any, of her health on the child.
A single expert clinical psychologist provided a report dated 30 May 2024. She identified that the mother had been diagnosed on a number of occasions for a mental health disorder and mental health condition. She formed the view that the mother posed a “significant and unacceptable risk of harm” to the child and requested that the final hearing be expedited (Single Expert Report of Ms E dated 30 May 2024, paragraph 170).
Interim consent orders were made on 6 June 2024 for the child to move from the mother’s care to the father’s and for him to spend professionally supervised time with the mother.
At the hearing, the father proposed that he have sole parental responsibility for the child who he said should live with him and spend limited supervised time with the mother if and when the child wished.
Up until the commencement of the hearing, the mother proposed that the father’s application be dismissed and that the child return to live with her. However, very much to her credit, she made the difficult decision to let the child continue to live with the father and instead sought orders that he spend time with her in increasing amounts of time, supervised at first but moving to unsupervised time. She proposed shared parental responsibility.
The Independent Children’s Lawyer (“ICL”) sought orders along the lines of those sought by the father and, ultimately, adopted the father’s Minute of Order Sought.
The position of the father and the ICL, supported by the single expert, was that the mental health difficulties faced by the mother have led her to harm the child physically and emotionally to such a degree that the child’s future contact with her should be limited and only occur in accordance with his wishes.
The mother’s position as to her mental health did not emerge with any clarity at all during the hearing. Whilst she accepted that she was involuntarily admitted to hospital in early 2024 pursuant to s 20 of the Mental Health Act 2007 (NSW) (“Mental Health Act”) and detained there for a period of time, she denied that it had anything to do with her mental health. She asserted that she had been set up by lies told by Mr F, her son from a previous relationship.
The mother said that she had recently been told by her “medical professionals” that she has “no formal diagnosis” (mother’s affidavit filed 10 July 2024, paragraph 40). She gave similar evidence under cross-examination. Her long-term general practitioner had taken her off the anti-psychotic drug she had been prescribed in hospital and returned her to her earlier prescription, which the mother proposed led to the inference that the general practitioner accepted that she did not have either of the two diagnosed disorders.
The mother has been charged with criminal offences against her son, Mr F, arising out of events in February 2024. She has made an application that she not be convicted but instead be dealt with under Div 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“Mental Health and Cognitive Impairment Act”). Under those provisions, a magistrate may dismiss a charge if, at the time of the alleged commission of the offence, the defendant had a mental health impairment or a cognitive impairment. The first is defined by a disturbance of thought, mood, volition, perception or memory that is significant for diagnostic purposes which impaired the emotional wellbeing, judgment or behaviour of the person including those that arise from recognised mental disorders (s 4 of the Mental Health and Cognitive Impairment Act).
In short, in seeking the dismissal of the charges under the Mental Health and Cognitive Impairment Act, the mother must accept that, at least at the time of the events the subject of the charge, she was suffering from a mental health impairment. That is difficult to reconcile with significant parts of her evidence.
The mother did not call her general practitioner, long-term counsellor or the psychiatrist who was said to have advised the mother she had no diagnosis to give evidence. No explanation for their absence was given.
The focus of these reasons, necessarily, will be on the admission to hospital and the events that led up to it. It is helpful, first, to put these events in the historical matrix.
BACKGROUND
I do not propose to spend a great deal of time on events prior to 16 April 2018 when final parenting orders were made by Hannam J. The father withdrew from those proceedings on 14 November 2017. That withdrawal does not undermine or invalidate the findings made by her Honour, including those as to family violence at the hands of the father. They remain binding findings as between the parties.
Those findings have, however, been overtaken by later events and no submissions were made based on those findings. There is no need to dwell on them.
Mr F, the mother’s son from a previous relationship and step-sibling to B, was born in 2001.
The parties commenced a relationship in 2009 and married in 2010. B was born in 2012.
The mother left the family home with Mr F and B on 9 March 2014. An Apprehended Domestic Violence Order was made for their protection in 2014.
In March 2015, the father commenced a relationship with his new wife.
In 2015, an ambulance was called to the mother who was said to be having hallucinations. She was involuntarily admitted to hospital and was released into her sister’s care in late 2015.
The hearing before Hannam J took place on 18 December 2017. The mother raised allegations of sexual abuse which were not established, and allegations of family violence which were established. Reasons were given on 16 April 2018 and orders were made for the child to live with the mother and spend no time with the father.
In 2022 the mother and the child moved from Suburb G to Town H where he became settled into the local school. Until then he had been home schooled.
In 2023 the mother and the child moved again and then returned to Sydney.
In May 2023, B started spending time with the father’s two other children from his previous relationship who were then adults. He also came into contact with the paternal grandparents.
In early 2024, a friend of the father’s informed him that B was having issues in his mother’s care, looked neglected and that the mother was not taking her medication, had attempted suicide and was convinced she was married to another man.
The mother’s mental health
Early 2024
The events of early 2024 are of key significance. The father and ICL submit that they show a significant deterioration in the mental health of the mother. Her position is that this is not so and that she was essentially “set up” by lies told by Mr F and B.
The only direct evidence on this issue comes from the mother. Mr F did not give evidence and, obviously, neither did B. The indirect evidence comes from the police records, what Mr F and B told the single expert and the hospital records.
At this time, Mr F, B and the mother were living together in a house. The mother and Mr F were the joint tenants on the lease.
The police were informed, presumably by Mr F and B, that in January 2024 the mother had been found to be sending letters to a married man in another state saying that the mother was or was wanting to be married to him. This appears not to be in great dispute. Similarly, it was not disputed that the man and his wife threatened intervention proceedings if the mother did not stop.
The mother was described as not taking her medication for six months (Exhibit 4, p.3, COPS record dated February 2024). This appears to be entirely correct. The mother’s Medicare prescription record shows her to have been taking a particular medication for a number of years (Exhibit 13). Although the mother disagreed, I accept the single expert’s description of it as an “antipsychotic” (Single Expert Report of Ms E dated 30 May 2024, paragraph 37).
In cross-examination, the mother agreed that the prescription noted on the Medicare records for the medication in May 2023 was not sufficient to last her to early 2024. She sought to explain this by saying that her general practitioner had halved the dosage. She produced no records to that effect. Indeed, the police records show the mother told police she “takes a smaller dosage and not as regular”, however when the ambulance spoke to her doctor over the phone, the doctor said she had been “taking the wrong dosage and nowhere near as much as she should be” (Exhibit 4, p.5, COPS record dated February 2024). I do not accept the mother’s version.
At some time earlier, Mr F found a letter that the mother had written to the married man and hid it. The mother returned home in early 2024 and started searching Mr F’s drawers looking for the letter. He told the police the mother slapped him on the face, punched him on the arm multiple times and spat at him. Shortly after, she bit him on the arm. The police were not called at the time but they did become aware of the incident subsequently (Exhibit 4, p.3, COPS record dated February 2024).
The police were called in early 2024 and they formed the view that the mother was hallucinating with delusions and was suffering from a mental health episode. They called an ambulance. As noted above, the medics spoke to the mother’s doctor and it was accepted that she was not taking the correct amount of medication. The mother agreed to increase it.
The police again attended two days later and again formed the view that the mother was suffering from a mental health episode. She told them “everyone was lying about everything in an attempt to get her in trouble” (Exhibit 4, p.3, COPS record dated February 2024). The back door was off its runners and the police were told that the mother had done it. An ambulance was called and on its arrival the mother was scheduled under the Mental Health Act and taken to J Hospital.
This narrative is confirmed by what B told the single expert.
The mother was admitted to J Hospital and involuntarily held there for a period of time. In early 2024, she lodged an unsuccessful appeal to the Mental Health Tribunal for her release.
The mother’s medication was changed and she was discharged. The discharge summary noted the mother to have had the following issues on admission:
She was noted to have manic and psychotic symptoms:
•Responds to internal stimuli, talking to herself
•Appears in constant turmoil “do not touch me, leave me alone”
•Delusional thoughts- god told her in a dream to marry a man from interstate, that she barely knew, despite the man is married with a family, whom wanted to put in an AVO against her
•Tearing screen door off hinges at home, but believes she is wrongly accused
•Grown suspicious and hostile to her family members for no clear reason
•Preoccupied with idea that women in the family were touching her inappropriately, including young niece
•Verbally aggressive at times for no clear reason
•Highly irritable, angry, short tempered, uncharacteristic of her usual self
•Significant weightloss in recent times due to poor eating
(As per original)
(Exhibit 6, p.2, J Hospital discharge summary dated March 2024)
Following discharge, the mother’s general practitioner returned her prescription to the earlier medication, which the mother takes as that doctor disagreeing with the diagnosis of the doctors at J Hospital. When the mother adds to that her statement that a psychiatrist has said she has no diagnosis, it confirms that she does not accept that she has mental health issues.
Consistent with this, the mother’s view on these events as repeated to the staff at J Hospital, the single expert and in her evidence, was that she herself had no difficulties and that Mr F was the aggressor having learnt bad habits in a group home he previously lived in. She alleged it was he who had knocked the door off its runners. Mr F and B then apparently told a series of lies to implicate the mother.
Other incidents
That evidence must be weighed against the evidence as a whole.
As noted already, the mother suddenly moved B briefly, then briefly to City K before returning to Sydney. The single expert described this behaviour as “impulsive” (Single Expert Report of Ms E dated 30 May 2024, paragraph 57) and made it clear in cross-examination that she considered that this was evidence of the mother’s mental decline.
At the same time, the mother suffered from a delusion concerning the married man. Whilst she denies that this is so, the weight of evidence is against her. It would be a particularly unusual event to fabricate.
This is consistent with the finding that the mother had reduced or stopped her medication in late 2023 or early 2024.
The mother asserted in evidence that she does not have other mental health conditions but rather depression for which she has been prescribed medication. As I have said, I do not accept that it is solely an antidepressant.
In 2015 the mother was admitted as an involuntary patient to M Hospital. She was diagnosed with a mental health disorder and prescribed medication (Single Expert Report of Ms E dated 30 May 2024, paragraph 37–38).
The material demonstrates that the mother has not been compliant with her medication at various times and has had a number of relapses.
It is quite clear from the above, that the mother has struggled with her mental health from 2015, particularly at the times when she has not been compliant with her medications. That clearly was the case in late 2023 and early 2024. That, in turn, explains the difficulties that arose between the mother and her sons.
Taking all of the above evidence into account, I am satisfied that the events occurred as described in the police and hospital records. The mother suffered a severe mental health episode which had been preceded by deteriorating mental health for some months. This was caused, or at least was significantly contributed to, by the mother ceasing her medication or by restricting her dose to therapeutically insufficient doses.
This all had a most unfortunate effect on B which the single expert recorded as follows:
173.The report writer explained that [B] did not have to be interviewed and was not required to discuss anything that made him feel uncomfortable. He said that he wanted to talk, adding that “things seem to be getting worse again” and that he “needs help” to manage the situation. [B] said that his mother is still presenting as agitated and angry, particularly towards his brother, [Mr F]. He said, “I can’t take it anymore”. [B] tried smiling while tears trickled down his cheek. He did not seem to notice.
174.[B] said that [Mr F] had moved out of the house for a short while before coming home “to look after me” and that it was “hard for [Mr F] to be there because of how Mum treats him”. [B] said that [Mr F] had lost his job when his mother became unwell because he had taken “too much time off work” in order to stay home to keep an eye on [B]. [B] said that if he is able to go and live with his father then [Mr F] will find somewhere else to live too. He said, “[Mr F] is only there for me”.
175.When asked to describe the events in the lead up to his mother’s hospitalisation, [B] said that he had stepped into [Mr F’s] room to see what all the yelling was about when his mother had “slapped [Mr F] hard”, adding that it had been “so loud I can still hear the sound”. [B] said that he had turned around and gone back to his bedroom to hide. [B] said that he had heard his mother “yelling and yelling” and had heard [Mr F] yell out when his mother bit him. [B] added that afterwards he had seen the bite mark on [Mr F’s] arm.
176.[B] said that [Mr F] had “only been trying to help” but it had made his mother “crazy”. He said that he had felt “sick and scared of what might happen next” and had told the Police exactly what had happened when they spoke to him by himself. [B] said that his mother is still insisting “it didn’t happen like that” but he knows better than to argue with her. He said, “she just sees things differently to everyone else because she is not well”. The report writer asked [B] if he knew what was wrong with his mother. [B] said, “she has [a mental health condition]”.
177.[B] said that his mother had spent the weekend prior to the appointment with the Expert at the Sydney rooms roaming around the house talking to herself and banging things around, appearing to be looking for something. He said, not only was she was talking to herself but also answering herself and it had frightened him to the point that he had stayed in his room with his headphones on so as not to hear her. He said that she was distracted and agitated all weekend, making him feel very anxious. He said that [Mr F] had kept an eye on him to make sure he was okay.
178.[B] said that he does not like being in the car when his mother is driving, adding that they had nearly had an accident recently when she had become angry with another driver and had barely avoided rear ending them. [Note: the Police records indicate that [B] has shared his concerns with them about not wanting to go in a car with his mother when she is not well.]
179.[B] said that his mother has changed her medication and is taking a lower dose, and it is “not helping her at all”. [B] said that his mother seems “really angry” with his Aunt and Uncle for “not getting her out of that place” and is no longer speaking to them and does not want him to see them either. [B] said that his mother is also restricting his online time to “just the weekends”, telling him it is for his own good, but he thinks it is to stop him from contacting his paternal family. He said that he really looks forward to playing online games with his older brothers and is close to them. He said that talking to them and to his father makes his life easier and that he looks forward to it. He said that he can’t say much because his mother is usually within hearing range.
180.[B] said, “Now that I am getting older, I am starting to work out that what she says may not be real or even true; for example, for my whole life she has told me that my dad hurt us and that is why I can’t see him, but I don’t think that is what really happened”. [B] said that he thinks that his mother may have been mistaken “because she can’t really tell what is real and what isn’t real”. He said, “she always blames everyone else – it is never her fault when something bad happens”. [B] said that he does not feel anxious or worried about anything when he is with his father, in fact he feels “safe and loved”. He said that he has enjoyed reconnecting with that side of his family and feels “angry” about having missed out on spending time with them. [B] said, “Do you know what I am? I am […]”. He went on to explain that his paternal grandparents cook “spicy foods” which he likes eating (except for the mushrooms that they had for breakfast, which he did not fancy). He said that he really likes his grandparents and his aunt and her family and would like to get to know them all better. He said, “they are my family too”.
181.[B] said that his mother will “get these ideas into her head and the next thing she is giving away all of my stuff” without asking him, just telling him they have to move again. He said that she recently gave away a present he really loved because she decided it was “Dad sending us a message and playing mind games”. [B] explained that it had been [Lego], “Worth like over a hundred dollars!” and his mother had given it away to the Salvation Army store, despite him begging her not to. [B] said that his mother finds hidden meanings in all sorts of things and will go to great lengths to explain why things make sense to her, “although it never makes sense to anyone else”. He said, “Another example is that guy, […], she thinks she should be married to. She said that if you add up the 2 of them plus the number of kids they have together it comes to her lucky number”. [B] added, “If you say it doesn’t make sense then she just says that God told her it would happen, as if that makes it all right!”. He said that she also dreams about things that are going to happen and then tries to make it happen. [B] said that this often means having to up and move, which he finds hard. He said, “I guess I should be used to it by now”.
(Single Expert Report of Ms E dated 30 May 2024)
In cross-examination the mother agreed that she had given B’s possessions away, including the Lego set as described.
BEST INTERESTS OF THE CHILD
I must make the parenting orders that I consider are in the best interests of B. In doing so I must take into account the matters set out in s 60CC of the Family Law Act 1975 (Cth).
It follows from the above discussion and findings that it is more likely than not that B has been exposed to and the subject of family violence whilst in the care of the mother. He has seen the altercations between the mother and Mr F, particularly in the early part of this year. He felt sick, scared and anxious.
It is accepted that B must continue to be free from those difficulties and it is agreed that B should live with the father. This accords with B’s views.
I am obliged to take into account the family violence noted earlier as found by Hannam J. Due to the change in circumstances it is no longer a factor that attracts any weight. No reliance was placed on it and it was not suggested that the acts of violence against the mother some years ago indicated that B was now at any risk of harm in the father’s care.
The real question is the nature and extent of the time that B is to spend with the mother. Supervision will sufficiently ameliorate the risk of harm posed to B by his mother, particularly at times when the mother is suffering from a mental health episode or failure to take adequate doses of her medication.
The father gave evidence that during the video calls that are taking place between the mother and B the mother persistently questions B. The father accepted that the questions themselves were not improper but he maintained that they were inappropriately persistent. There is no reason not to accept that evidence.
Supervision, particularly professional supervision, again would largely ameliorate that risk when B spends time with the mother.
However, it also has to be accepted that long-term supervision is not ideal.
The mother’s contention is that she has recovered from this years mental health episode. The hospital notes do not suggest so. I do not accept the mother’s bald statement that Dr L, a psychiatrist, has told her that she no longer has any diagnosis, given the difficulties with her evidence already noted. There is no evidence from that doctor and no evidence from her current general practitioner.
Allied to the mother’s mental health is a history of either not taking or taking insufficient doses of her medication. This is variously, it seems, because she does not feel that she needs it or because it causes weight gain.
The mother’s confusing answers give me no confidence that the mother’s difficulties are under control and will remain so in the future.
B presently feels safe and secure living with his father. It is a new arrangement and it needs to be preserved and protected as the return of B to his mother’s care is not tenable.
The developmental, psychological, emotional and cultural needs of B were addressed by the single expert as follows, and I agree with her assessment.
In her report, she noted that when she asked B if there was a message he wanted to send to the judge he replied “Please help me. I can’t take this anymore” (Single Expert Report of Ms E dated 30 May 2024, paragraph 185). The expert added:
186.[B] needs to feel safe and secure and to feel supported by the adults who care for him. He would benefit from a consistent and predictable routine where rules and expectations are clearly stated, and boundaries are respected.
In terms particularly relevant to the nature and extent of the time B should spend with his mother, the single expert expanded on that view in cross-examination as follows:
…So I think [B] is about to get a lot angrier as it – as he starts to realise what he did miss out on and – and starts to process what has happened to him he’s going to become a little bit more forceful in not wanting to go and spend time so I think that his wishes do need to be taken into consideration – he might only be 12 years old but he is a very brave 12 year old and he’s a very articulate 12 year old and I think that it – it could be hard for him if he feels that he’s being compelled to do something against his wishes and he’s not getting anything out of it. Particularly as he starts to make friends at school and starts to – starts to do the things that a normal teenager in year seven does, he’s going to become a lot more resentful and if he were to start to push back and to say that he didn’t want to go every six weeks that could cause problems within his relationship with his father and his family that are looking after him and I think that there are going to be a lot of challenges ahead for all of them to try and normalise the situation. So, in my roundabout way to answer your question, I think that theoretically it’s a great idea to say that every six weeks that’s going to happen, but I think a lot will rest on how [B] manages it.
It is a considerable step, effectively, to place the decision making as to whether B sees his mother in his hands, but the logic of the single expert’s opinion is compelling. It accepts that a continuing relationship between B and his mother will be of benefit to him, especially in the long term, but forcing too much time on him too early is unlikely to assist in maintaining that relationship.
I accept too that forcing him to see his mother may well be counterproductive and set back the way he deals with the trauma of his time with the mother and his settling in to a more normal life.
The structure of the orders proposed by the father, which set times for the visits but give B the option not to go, strike the right balance between encouraging him to see his mother but leaving the final decision to him.
These orders also allow for the distance between the parties (the mother lives in Sydney and the father in Town C). The mother did say that she might move closer to B.
I am satisfied that these spend time arrangements are in B’s best interests.
The parties will equally bear the costs of supervision.
As to parental responsibility, most of the long-term issues for B have been determined. There is no issue as to his school, into which he is settling well, religion (both parents belong to the same religion) and there is no suggestion that the father is likely to change the place where B lives. That leaves only the issue of health.
The ICL pointed out that text messages between the parties between 1 April 2024 and 17 June 2024 were respectful.
It must be accepted too that the mother has made the difficult but appropriate decision not to pursue her orders that B live with her or spend substantial time with her. That position, however, only emerged at the hearing.
I consider that if the mother’s mental health was under control and likely to remain so, shared parental responsibility would be appropriate. I am not so satisfied and am wary of the mother’s ability to cooperate with the father and make decisions in B’s best interests when her mental health may not be ideal.
On balance, B’s best interests are served by the father having sole parental responsibility.
INJUNCTION SOUGHT BY THE FATHER
The father sought an order that the mother be restrained from attending the church of which he, his wife and family, and B attend. Whilst the mother remains in Sydney, this order is unlikely to cause any difficulty. It may well do so should the mother move to Town C, which she indicated was a possibility.
The orders are structured so as to give B a break from a difficult time with the mother. That will not be assisted by the mother suddenly attending the same church as him. The mother’s right to worship is not being restricted, just her access to one venue. Even if it is the only church of that denomination in Town C (the evidence does not disclose whether it is), the mother could choose to move closer to Town C but to a place where there is another church.
NAME CHANGE
The father sought an order that B’s surname be changed from ‘Merkel’ to ‘Merkel Wastell’. During cross-examination, the mother indicated her agreement with the proposed change. The single expert was also supportive. The name change would maintain an identity with both parents and be consistent with B’s lived experience moving forward as he resides with the father. An order will be made accordingly.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 18 September 2024
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