WILKIE & KRIVKIN

FAMILY COURT OF AUSTRALIA

WILKIE & KRIVKIN

[2015] FamCA 651

FAMILY LAW – CHILDREN – BEST INTERESTS – SPEND TIME – PARENTAL RESPONSIBILTY – Where the father was diagnosed with bipolar affective disorder– Where the mother sought that all time for the child with the father be supervised – Where the expert opined that the father remained at risk of relapse – Where it was determined that supervision was necessary in order to afford the child protection from possible physical or psychological harm – Orders made for supervised time with the father with no overnights – Orders made that the mother have sole parental responsibility for the child.

Family Law Act 1975 (Cth) s 61DA

APPLICANT:

Ms Wilkie

RESPONDENT:

Mr Krivkin

FILE NUMBER:

SYC

419

2013

DATE DELIVERED:

7 August 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

22, 23 and 24 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Kennedy

SOLICITOR FOR THE APPLICANT:

Abrams Turner Whelan Family Lawyers

SOLICITOR FOR THE RESPONDENT:

Family Legal

Orders

IT IS ORDERED

That the child O (“the child”) born … 2012, live with the mother and the mother have sole parental responsibility for major long term decisions in relation to the child.
That the mother ensure that for all purposes the child uses the surname of “Krivkin”.
That before making any major long term decision in relation to the child, the mother inform the father in writing (including email) of her proposal and that she not make any decision without first considering the father’s proposals.
That the mother promptly advise the father of:
4.1the names and contact details of any medical or other allied health practitioner who is consulted in relation to the child;
4.2the dates of any appointment which the child attends and any treatment prescribed by such practitioner; and
4.3authorise those practitioners to provide to the father any information he requests in relation to the child.
That both parents be authorised to obtain from any school that the child attends any information about her progress including, but not limited to, school reports, newsletters, school photographs and information about events to which parents are invited.
That from the date of these orders until 31 March 2016, the child spend time with the father on the first Sunday of every month, or otherwise as agreed in writing, between 9.30 am and 6.30 pm in the mother’s home and that from 1 January 2016 until 31 March 2016, or earlier if the parties agree in writing, Mrs N accompany the father.
That for the purpose of Order 6, the father may be accompanied by other family members with the consent of the mother.
That from 1 April 2016 the child spend time with the father on the first weekend of each month from 9.30 am until 6.30 pm on Saturday and from 9.30 am until 6.30 pm on Sunday in the company of Mrs N and that the father and Mrs N collect the child from the mother’s home and return her to the mother’s home on each occasion.
That in the event that Mrs N limits or curtails the child’s time with her father for reasons connected with his behaviour, then she shall immediately provide the mother and the father’s medical practitioners (as defined in Order 12) with a report of her concerns.
That the mother cause Skype communication to occur between the child and the father on two occasions each week, in the absence of agreement between 5.00 pm and 6.00 pm on Monday and Thursday for not less than five minutes.
That the father is restrained from communicating with the child by Skype when he is driving a motor vehicle.
That the father keep the mother advised of the names and contact details of his treating general practitioner, psychologist and psychiatrist (his “medical practitioners”) and provide written authorities to those practitioners to provide to the mother information about the father’s health including but not limited to information about his compliance with medication, regularity of attendances and other matters reasonably relevant to the progress of his illness in so far as it is relevant to his spending time with the child.
That the father instruct his medical practitioners to receive any report proffered by Mrs N in relation to any aspect of the father’s illness or behaviour that causes her concern or causes her to limit the child’s time with the father.
That each of the parents do all acts and sign all documents required to obtain a passport for the child and to keep her passport current.
That the mother be permitted to travel with the child outside Australia provided that:
15.1the child’s time with the father pursuant to these Orders (including Skype time) is not affected; and
15.2the mother provides to the father an itinerary, not less than four weeks before the proposed travel, setting out details of flights, destinations and contact details during the trip.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilkie & Krivkin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 419 of 2013

Ms Wilkie

Applicant

And

Mr Krivkin

Respondent

REASONS FOR JUDGMENT

The child O (“the child”) was born in mid-2012 and is just three years old. In the proceedings before the Court the applicant, Ms Wilkie, (“the mother”), seeks orders which would have the effect that, for the foreseeable future, the child’s time with her father would be subject to supervision by the maternal family. The respondent, Mr Krivkin, (“the father”) asks the Court to make orders which would ultimately see the child spending time with him in Melbourne for block periods of time. It was the father’s case that, although he did not regard supervision as being necessary, if the Court were of the view that supervision was required, then the appropriate supervisor would be the father’s sister.
Both of the parents are committed to the child’s having a meaningful relationship with both of her parents. The primary subject of the dispute was the need to protect the child from possible physical or psychological harm arising from the father’s mental illness, and the differing views of the parents about the way in which the father’s time with the child should be structured, in order to afford her that protection.

HISTORY

The mother and the father commenced living together in April 2006 in Melbourne. The mother was born in Sydney, and relevantly, for the purpose of these proceedings, the mother’s parents and sister lived in Sydney. The father was born in Melbourne and his mother and extended family, including the father’s sister, Ms N, her husband and six children, and the father’s mother and brother all live in Melbourne.
The parents separated on 8 November 2012 in circumstances which will be described in some detail. The mother took the child, then aged five months old, and returned to Sydney and has, since that date, lived with her parents. The father has remained in Melbourne.
In the proceedings, the Court was assisted by a report from a single expert, Dr L, who also gave oral evidence.

THE FATHER’S MENTAL HEALTH AND THE EVENTS SURROUNDING SEPARATION

Whilst the father and the mother did not agree about the severity of the father’s medical difficulties there was no dispute that he has been diagnosed as suffering from a bipolar affective disorder.
The father’s medical records were reviewed by Dr L, the single expert, and summarised in her report. No issue was taken with Dr L’s summary.
The father appears to have first consulted Dr V (a consulting psychiatrist), whom he saw on three occasions. The records indicate that the father presented with problems with mood, anxiety and gambling. Dr V’s notes indicated that there was a possible history of mood disorder in the father’s family; that both his brothers used drugs; and that he described his parents as being “absent and self-absorbed who don’t care about their children”. He reported behavioural problems at school and being expelled three times because of fights. Dr V also noted that the father had been involved in fights on several occasions to the point where he was charged and had to serve community based orders.
After the father’s first consultation with Dr V on 3 November 2010 a letter was written by Dr V to the father’s general practitioner. Dr V noted, in relation to the father:
He presents with a variety of psychiatric symptoms of long duration. These symptoms according to [the father] have been there for a long time and have become worse in the last few years to the point where he has noted a decline in his quality of life.
Dr V also recorded:
[The father] also has a history of gambling for almost 15 years and this has increased in the last one year. He appeared to be minimising the extent and impact of gambling and claims that he gambles to lose money so that he could distract himself from thinking about other things. However, the fact that his wife has taken control of the finances suggests that the problem is more than what he is ready to admit. He did however admit that he feels that he might lose control over gambling if his wife was not around.
Dr V concluded “My impression is that [the father] suffers from generalised anxiety disorder and has Cluster C traits in his personality. In addition gambling seems to be a co-morbid problem as well.” Dr V recommended an increase in the dosage of the father’s then current medication and cognitive behaviour therapy.
The father first consulted a clinical psychologist, Ms B, in February 2011, initially in relation to mixed symptoms of anxiety and panic. Ms B’s records indicate that the father described problem gambling in September 2011 and reported to her that he had gambled $35,000.
In February 2012 the father was dismissed from his employment as the senior manager of a food company. In a letter dated 23 February 2012, the father’s employer stated:
We note that during the course of the day you:
·Forbade me from talking to your staff without prior permission and copied this “direction” to other staff;
·Blatantly refused to meet with me in my office when I directed you to do so before you commenced leave;
·Were aggressive to me when I came down to find you and you challenged my authority and credibility as the Owner of the company in front of fellow staff;
·Told me that when you returned from leave you “would do what you want”, “would not follow my instructions if you disagreed with them” and that “I would have to change to accommodate you”; and
·Stated that if I refused to change you would show me how good a manager you were by going to a competitor, taking our key staff and bringing our business down.
The father’s employer noted that the father had failed to follow directions in relation to financial matters and that the father was suspected of having stolen money from the business.
The father’s employer took out an Apprehended Violence Order for the protection of himself, his wife and their three children naming the father.
In June 2012 Dr V diagnosed the father as suffering from major depression of moderate to severe intensity. In July 2012 Dr V expressed the view that the father might have major depression with psychotic features.
On 28 October 2012 the mother booked a flight for herself and the child to travel from Melbourne to Sydney to visit with her parents on 8 November 2012. She did not book a return flight and was not sure how long she would stay in Sydney. On 6 November 2012 the father told the mother that he had been going to Crown Casino sometimes five nights a week and sometimes during the day. He told the mother that he had stolen money from people at Crown Casino and he had been excluded from Crown Casino. In the same conversation the father told the mother that he had stolen money from his employer and that in one week he had stolen over $14,000.
On 7 November 2012 the father’s brother visited and, in the presence of the mother, the father said to his brother that he had thought many times about committing suicide.
On 8 November 2012, the mother attended with the father for an appointment with Ms B. The mother deposed that the father had said to Ms B “I stood on a bridge and contemplated jumping off and I have held a gun to my head.” The father told Ms B that he had access to a firearm which was owned by a friend. Later on, in the afternoon of 8 November 2012, the father said to the mother:
I know I’m not worthy of you or [O]. You’re both better off without me. I know this is the best thing I can do for [O]. I’m either going to end up in gaol or dead. You should start a new life without me. You should go to Sydney with [O] and live with your family. [O] is so young. She doesn’t know me yet, it would be an easy transition for her. She’ll be better off without me.
The mother’s account of the meeting with Ms B is corroborated by Ms B, who notes that on 8 November 2012 she had a joint session with the father and the mother and that the father stated that he had been gambling, lying to Ms B, stealing other people’s money, was physically assaulting people, had suicidal ideation and access to firearms. Ms B recommended hospital treatment.
On the afternoon of 8 November 2012, the father drove the mother and the child to the airport to fly to Sydney.
Records produced by Victoria Police indicate that on 12 November 2012, the father contacted police stating that he was having suicidal thoughts, that he had access to a firearm and had previously had a firearm in his mouth and attempted to jump off a bridge. The records indicate that the father was “threatening suicide by police”. The police records indicate that the father was apprehended by a Critical Incident Response Team.
The father’s illness escalated. Dr L summarised the notes produced by the Northern Hospital under subpoena with respect to the father’s psychiatric history as follows:
I also note the extensive material from the [X] Hospital. The records indicate that [the father] was a patient of the hospital from 12 November 2012, when he was brought into hospital by police, until 6 December 2012 as a voluntary patient. He was later an involuntary patient subject to a community treatment order for a period of 12 months (from 6 December 2012 until 6 December 2013).
These records indicate that [the father] appealed against the decision of the Mental Health Review Board but that the hearing (in January 2013) found that the Board was satisfied that continued treatment as an involuntary patient was necessary and confirmed the community treatment order.
The records indicate that at the time of his admission from hospital he was noted to have manic symptoms such as racing thoughts, circumstantiality, elevated and labile affect, paranoid thoughts and suicidal and aggressive thoughts with impaired judgment and insight.
The records suggest that he had reported he had put a gun to his head and in his mouth to end his life, that he was threatening others (which caused the involvement of a SWAT team (sic).
He was diagnosed with bipolar affective disorder.
During his stay in hospital there were a number of difficulties with his behaviour; including that he become (sic) manic, was threatening staff and others (including his GP and psychologist and [the mother] by telephone). He was recorded to have contacted his GP and waited outside the GP clinic and allegedly intimidated reception staff when he was on day leave. He was also noted to have called 000 and claim (sic) that hospital staff were sexually abusing him. He was also recorded to have been threatening hospital staff and manipulating them, became violent and abusive and needed to be restrained and secluded. He reportedly self-induced vomiting. He was also observed to be grandiose, have poor insight and judgment.
It appears that he presented to emergency the day immediately following discharge, with symptoms of anxiety and wanting to change medication (to recommence an anti-depressant and cease [his medication]). It appears he was convinced to remain on [his medication] .
I also note that assessment of his mental state was complicated by the fact that “his normal personality style includes ‘manic’ features such as excitability, poor frustration tolerance, loud and mildly pressured speech, and tendency to ‘get stuck on an idea and not let it go’ (report of [a consultant psychiatrist] on 22 November 2012).
These records also indicate that [the father’s] brother reported to the team that “he is a compulsive liar”, that he “acts like a spoiled brat” and that he has always had long-term “anger issues”. Although the notes indicate his brother was aware that the current state of his mental health was “far beyond this”.
The hospital records also noted that [the father] had some behavioural traits that were seen as being amplified or extreme versions of pre-existing characterological features, “likely Cluster C traits” (hospital notes dated 24 November 2012).
On 20 November 2012, Ms B telephoned the mother and said to the mother “I’m very concerned about the gun situation. He is obviously unwell.” Ms B also said to the mother “I strongly advise you to stay in Sydney for now. If he turns up at your parent’s house, call the Police straight away.”
The relationship between the parents deteriorated rapidly from the time of the father’s hospitalisation. The father accused the mother of having taken the child to Sydney without his permission and threatened to approach the courts and seek a recovery order. Simultaneously in other messages to the mother, the father expressed regret and sorrow and told the mother that he understood why it was necessary for her to remain in Sydney. I am satisfied that the father agreed to the mother and the child travelling to Sydney on 8 November 2012 (he drove them to the airport) and that it was necessary for the mother’s safety and for the child’s wellbeing for them to remain in Sydney, at least in the short term.

THE EVIDENCE OF DR L IN RELATION TO THE FATHER’S MENTAL HEALTH

In her report, Dr L stated:
With respect to the father’s mental health I think there a number of important considerations insofar as it relates to parenting issues and the capacity of the parents to communicate and resolve issues. The comprehensive accounts of the father’s mental health as recorded in the material produced under subpoena is in considerable contrast to the father’s description of his own mental health. According to the material produced under subpoena the father has had underlying problems with anxiety and depression that have been longstanding or have at least been occurring since 2011 when he first sought treatment from a clinical psychologist. These records indicate that the numerous health practitioners he consulted had recorded that he had difficulties with anxiety and depression and that there was concern that the father had personality traits that may be indicative of a personality disorder. The father’s hospitalisation around 2012 suggested that he had a particularly significant mental health episode that resulted in him being involuntarily admitted to the [X] Hospital as a psychiatric inpatient and eventually discharged under a community treatment order. At this time, the father was diagnosed was bipolar 1 disorder. The father’s behaviour at his hospital admission both prior to and during was of great concern to the staff and included aggressive and manipulative behaviour as well as coercive and threatening behaviour to others. The father is currently medicated for bipolar 1 disorder and he appears to have adhered to a maintenance program. Bipolar disorder (also known as manic depression) is a psychiatric disorder which can cause changes in mood, energy, activity levels and daily functioning. Bipolar disorder is usually managed by a lifelong adherence to medication as well as ongoing psychological therapy. It has a high rate of relapse (between 70 - 85% after five years).
Coupled with the father’s bipolar 1 disorder is the concern raised by Dr [V], Dr [J] and hospital staff who were concerned about aspects of the father’s personality as being underlying features of a personality disorder. These notes from the various clinicians indicate that there was a complication with respect to [the father’s] diagnosis insofar as it appeared that his baseline personality style included manic features such as excitability, poor frustration tolerance, loud and mildly pressured speech, and tendency to get stuck on ideas. These personality traits were certainly evident on interview with me.

Dr L also noted:
The father’s forensic history, as reported on material produced under subpoena, indicates that he has had an historic tendency to find it difficult to engage in interpersonal relationships particularly when these involve conflict. For example, he appears to have had numerous restraining orders and actions taken on behalf of others that have indicated that they have found his behaviour to be aggressive, threatening and hostile. The father appears to minimise the seriousness and significance of these occurrences and does not appear to have taken on board the idea that his behaviour may be outside the normal range and be regarded as threatening, or intimidating by others.
Dr L concluded:
However, on interview with me, and on conversation with his current treating clinical psychologist, the father appears to have had significant improvements in his mental health. The father has lost a significant amount of weight, has adopted a healthy lifestyle regime and appears to be regularly adhering to appropriate medication for bipolar 1 disorder. Undoubtedly this has had an impact on his mood regulation and has contributed to his lack of significant manic episode to date. In addition, I noted that the father had a very good understanding of relapse prevention and had a clear idea of the signs and symptoms of recurrence of his mental illness.
Consequently, I think that the father’s current mental health diagnosis could be best understood as a bipolar 1 disorder that is currently treated and is well managed with medication and ongoing therapy.
Dr L was cross-examined by the solicitor for the father in relation to her prognosis of relapse. She reiterated her view that statistically there was a very high percentage chance that the father’s mental health problems would relapse. Dr L said that the chances of relapse are not moderated by length of time.
In so far as it appeared to be the position advanced in submissions by the solicitor for the father, that if the father had not suffered a relapse within five years of the first episode, then a relapse was unlikely. I reject that submission. Dr L, when pressed in relation to this issue, said that the only way in which she could answer the questions put by the solicitor for the father was to rely upon the statistics. She outlined that the current scientific understanding is that bipolar disorder is a genetic disorder of the brain and that, regardless of steps taken by a patient to keep well, the patient remains at risk of relapse. Dr L reiterated her evidence that the risk of relapse in cases of bipolar 1 is very high. Dr L said “I don’t think any person of scientific credibility would be able to assess the risk factors available to a particular patient or say that one person had a high risk of relapse and another person had a low risk.”
Dr L said that the only thing she was prepared to say is that medication compliance is the biggest predictor of whether somebody relapses in terms of their symptoms and that it was her understanding that the father was currently compliant in relation to medication but that he had not always been compliant.
In her oral evidence, Dr L said that well managed bipolar disorder:
…needs to have a combination of things going on. One is ongoing psychiatric review and review of medication because it is a disorder that will require lifelong medication and compliance to medication and once a person is stabilised on medication, that they would be having, you know, six-monthly reviews with a psychiatrist. In conjunction with that the best practice, sort of, gold standard treatment if you like for bipolar I disorder would be also having ongoing cognitive behavioural therapy in the order, I would say, of around about once a month with a clinical psychologist or psychologist as well as having supervision – having ongoing monitoring by a general practitioner combined with the things I was talking about before – a relapse prevention plan. So those would be the things I think would be in place to manage bipolar I disorder. In terms of the personality disorder/traits, unfortunately, our profession is not very good at being able to treat or manage – we don’t have a lot of evidence that personality disorders tend to respond very well to much treatment at all, unfortunately.
It is therefore a matter of some concern, in relation to the optimum management of the father’s bipolar disorder, and the prognosis for relapse, that the father is not regularly reviewed by a psychiatrist.
It also a matter of concern that Ms B, who is the father’s treating psychologist, does not accept the diagnosis of bipolar disorder. When Dr L spoke to her, Ms B said that she did not think the father had bipolar disorder; she was not sure if the father was taking his medication regularly; that the father was not currently under the care of a psychiatrist and that she (Ms B) was not aware of the father’s forensic history.

THE FATHER’S TIME WITH THE CHILD AFTER SEPARATION

On 21 May 2013, Aldridge J made orders, after hearing an interim application, which had the effect that, pending further order, the child lived with her mother in Sydney and spent time with her father on not less than one day each month, in the home of the mother’s parents in Sydney, and with the supervision of one of the mother’s family members.
Since the making of those orders, and to the enormous credit of the father and the maternal family, the father has travelled to Sydney every month to spend time with the child and either the maternal grandmother or the mother’s sister, Ms W, have supervised the time. The father has from time to time been accompanied on his visits by his mother (the paternal grandmother) and his brother.
Additionally, the father’s sister, Mrs N, has visited the child with various of her children. Those visits took place in the absence of the father and by arrangement between Mrs N and the mother.
Both the maternal grandmother and Ms W swore affidavits and were cross-examined in the proceedings. They each gave evidence about their observations of the father’s time with the child. Although each of them agreed that the relationship between the father and the child was progressing, each of them gave evidence that the father interacts with the child in a way which does not recognise, or take account of, the child’s reactions.
Ms W in her affidavit said:
From my observation, the behaviour of both [the father] and [the paternal grandmother] is full-on and over-the-top. The physical actions are exaggerated, fast and pushy. Their voices are loud. They grab [the child] and are overly demonstrative with her, which she does not like and is not used to. [The father] is like a big bear, tossing her around like a play-thing and then easily distracted. [The father] and [the paternal grandmother] appear to me to be temperamental in their interactions with [the child], by which I mean that if [the child] does not react the way [the father] or [the paternal grandmother] expect or would like, then they are critical and do not interact with her.
The mother made similar comments in relation to the father’s interaction with the child.
Dr L’s observations of the child with the father accorded with that of the maternal family and of the mother. In her report, Dr L said:
[The child] appeared to be very happy and excited to see her father. She gave him physical affection and gravitated towards him. However, I noticed that [the father] had an extremely loud voice and engaged with [the child] in a rather intense and loud manner. He spoke rather repetitively at times asking her to repeat things. Although his voice was loud and pitch was intense, it was not aggressive rather it was upbeat. However, he did not leave [the child] much time to respond and would continue in his narrative.
Dr L commented that the child appeared to be somewhat bewildered by the father’s behaviour.
Throughout the whole of the proceedings, and until each of the parties filed their case outline documents, the matter proceeded on the basis that the father required the mother and the child to return to Melbourne to live and that the mother consented to an order that the parents have equal shared parental responsibility. It was only when the case outline documents were filed that it became apparent that the father no longer pursued his application for the mother to return to Melbourne with the child but sought orders in relation to time with the child, initially in Sydney and later in Melbourne. Similarly it was only when the mother’s case outline document was filed that the father became aware that she no longer consented to an order for equal shared parental responsibility.
The child is only three years old and there is no evidence before the Court of her wishes, nor would her wishes be given any weight.
In relation to the nature of the relationship of the child to each of her parents and significant adults, Dr L’s evidence was not challenged.
Dr L in her report stated that the child appears to have a secure, strong and clear attachment relationship with her mother. Dr L found that the mother had an exceptionally good capacity to tune into the child’s emotional, social and psychological needs and that she adopted a sensible and child focused routine which allowed the child to benefit from both the comfort and security of the mother’s care but also to be exposed to other carers in an age appropriate manner. Dr L commented that the child was happily able to leave her mother’s care for short periods of time to be cared for by other familiar adults from the maternal family, indicating that the child is secure in her attachment relationship with her mother.
In relation to the child’s relationship with her father, Dr L gave evidence that the picture is more complicated. Dr L said that the child’s current attachment with her father is one of a caring and familiar adult but she said “However it appears to me that [the father] is not a significant attachment figure in [the child’s] life at present”.
In relation to the maternal grandmother, Dr L observed that the child had a very close and strong attachment relationship with her maternal grandmother. The maternal grandmother has had a significant role in the child’s upbringing from the time she was five months of age when the mother and the child moved to live with the mother’s parents in Sydney. Dr L expressed the view that her involvement with the child’s upbringing appears to have had a significant impact on the child’s level of attachment to her. Dr L says that the child views her maternal grandmother as someone who is predictable, safe and reliable and that the child has developed a secure attachment relationship with her maternal grandmother.
In relation to her maternal aunt, Ms W, Dr L expressed the view that the child is developing a close relationship with her. Dr L observed that the child turned towards her maternal aunt for clarification and at other times when she felt unsure and that the child appeared to have a warm and developing relationship with her maternal aunt.
Both the parents told Dr L that the child has a very good relationship with her paternal aunt, Mrs N, and with her cousins and both parents described the child as taking a great delight in those relationships.
Dr L said, in relation to the child’s relationships:
The father and mother also indicated to me that [the child] has a warm and developing relationship of familiarity with the paternal family members, including her paternal grandmother. In general, a child of this age is starting to develop a sense of identity, a sense of belonging and a sense of place in family. [The child’s] cognitive skills are developing to the degree that she can begin to understand her relationship with others. However, as she is a very young child the stability and security of those relationships depend on the frequency of contact as well as the qualities of the care giver…
The father was critical of the willingness and ability of the mother to encourage a close and continuing relationship between the child and the father and the paternal family.
I specifically reject that submission.
The evidence before me was that the mother and the maternal family had facilitated the father spending time with the child in their home on each occasion when the father was available.
The father told Dr L that the mother provided him with updated information about the child including films and photographs which she provides to him on a USB stick on a monthly basis.
Dr L referred to the mother’s recent efforts to involve the father and the paternal family members in the child’s second birthday celebrations and that the mother had encouraged other family members to visit the child at any time. It is undisputed that the father’s sister, Mrs N, and the child’s cousins visit the child on regular occasions outside the scope of the current Orders.
I agree with the conclusion of Dr L that the mother’s behaviour suggests that she is not just interested, in theory, in a relationship between the child and her father and the paternal family, but also in practice.
In relation to the father, Dr L said:
With respect to the father’s capacity to support and facilitate a close relationship between [the child] and her mother this is yet untested. I am concerned about the degree to which the father criticises the mother, his developing questioning of her motives and his inability to recognise the times when the mother has behaved in a positive manner. I am also concerned about the degree of criticism of members of the maternal family that the father has made.
Dr L considered the effect of changes in the child’s circumstances in the context of the father’s application, as it then was, for the mother and the child to return to live in Melbourne. Dr L did not consider that requiring the mother to move to Melbourne with the child was in the child’s best interests.
In relation to the father’s proposal that the child spend one full weekend with him, whether in Sydney or Melbourne, including an overnight period, Dr L said that that arrangement would be likely to have an impact on the child’s sense of stability and security. At the time when Dr L saw the child, she was two years old. The child had not experienced any separation for any length of time from her mother. Nor had she spent any unsupervised time with her father. Dr L, in her report, said that a separation of the suggested duration of a whole weekend from her mother and maternal family members, in a new and unfamiliar location, would likely cause considerable distress to the child and may result in insecurity, distressed behaviours and future difficulties in adapting to such experiences.
In her oral evidence, Dr L said that she could not predict at what age, or stage of development, the child might be able to tolerate separation from her mother and that the uncertainties, given the child’s age, were such that she would not recommend overnight time with the father. Whilst Dr L readily conceded that there may come a time when the child would welcome and benefit from spending overnight time with the father she was not in a position to say when that time might be.
Dr L supported the proposition that from 1 April 2016 the child should spend time with her father, in the company of her paternal aunt, Mrs N, on the first weekend of every month from 9.30 am on Saturday until Saturday evening and again from 9.30 am on Sunday until Sunday evening. Dr L specifically rejected the father’s proposal that the child should spend the whole weekend including overnight with him. The father, to his credit, accepted Dr L’s recommendation.
I propose to consider the capacity of the parents to provide for the child and their attitude to the child and the responsibilities of parenting together, as did Dr L. Neither the father nor any of his witnesses criticised the mother either as to her ability to care for the child or as to her attitude to her responsibilities. Both the father and Mrs N regarded the mother was an excellent mother and both of them praised her care of the child.
It was suggested to Dr L in cross-examination that the mother is overly protective of the child. Dr L rejected that suggestion. It was her view, and I concur, that the mother’s actions in removing the child from Melbourne in circumstances when the father was having a significant mental health episode were in the child’s best interests. Dr L also expressed the view that the matters relating to the father’s behaviour, which the mother detailed in her affidavits, were all matters that were concerning in terms of the child’s wellbeing and that it was reasonable for the mother to be concerned about the effect on the child of those behaviours.
Dr L expressed the view that it was a credit to the mother that she appears to be managing as best she can, by being positive and encouraging about the father, and saying happy things about him to the child, but that it was inevitable that the child would also be aware of the mother’s anxieties.
In relation to the father Dr L said:
With respect to the father’s capacity to attend to [the child’s] needs including her emotional and intellectual needs and his attitude to her and to the responsibilities of parenthood I am less certain. On the one hand, the father speaks positively of the child, demonstrates great enthusiasm and love for her and expresses a persistent view that he wishes to be engaged and involved in her life. However, and as indicated earlier, I think that the father has a rather insensitive manner of engaging with the child and that perhaps he loses the subtleties of the child’s cues in his engagement with her. Perhaps as a consequence, [the child] is somewhat more tentative when she is spending time with her father. At the same time I think that the father has minimised the significance of [the child’s] attachment relationships with her maternal family members and in this way has not understood her emotional experience as a two year old child. He appears to have an attitude of possessiveness towards the child and be singularly focussed on [the child’s] expressions of love for him, rather than adopting a more child-led and open manner of engagement with her.
Dr L expressed the view that the father’s personality style will have a significant impediment to the child developing a close and secure attachment relationship with him. Dr L expressed her concern about the father’s capacity to tolerate the child’s ambivalence, or even her negativity towards him, which will undoubtedly occur as it does in any parent child relationship. She expressed concern that the father’s personality is such that he may respond to such things with a high degree of emotional manipulation towards the child. Dr L also expressed concern that when the child stops behaving in a compliant and enthusiastic manner towards him he may become disinterested (at best) or hostile and angry at worst.
The practical difficulty and expense of the child spending time with her father and the paternal family is obvious. In accordance with the current Orders, the father has borne the whole of the financial burden of travelling to Sydney to see the child once a month and the paternal family has paid the costs of other members also travelling to Sydney to see the child. On the orders that are sought by the mother, this burden would continue to fall on the father and the paternal family, not only to pay the cost of the father travelling to Sydney to see the child and paying for overnight accommodation in due course, but the attendant costs of the travel for Mrs N.
There was no suggestion on the father’s part that he is unable to afford the cost. He is about to start a new job which will pay him $52,000 per annum. He has invested in a property development in partnership with his brother-in-law, Mr N. He received $297,000 by way of property settlement on the sale of the former matrimonial home and has, so far, invested $58,000 of that sum in the property development project.

Mrs N did not raise any concerns about the financial burden to her of travelling to Sydney to supervise the father’s time with the child.
The father submitted that, if some of the time that the child spends with him were to be spent in Melbourne, this would alleviate the financial burden upon him. This may be so but at the present time the mother is not in receipt of an income by way of employment. She is engaged in study for an undergraduate degree at university on a part-time basis.
Dr L was of the view that there was no benefit to the child, in the foreseeable future, from spending time with the father in Melbourne although she conceded that there would probably come a time when the child will be interested to spend time in Melbourne and see where her father lives and where her cousins and paternal aunt live. She could not predict when that time might be.
Dr L was of the view that the child’s developing relationship with her father would not be enhanced by spending time with him in Melbourne rather than in Sydney.
Because of the risks to the child inherent in the father’s mental illness, specifically a recurrence of deteriorating health, Dr L recommended that his time with the child, for the foreseeable future, be supervised and not overnight.
In circumstances where the management of the father’s illness is not optimum and recurrence is statistically likely, I accept that recommendation.

SUPERVISION

The mother’s position is that the time that the child spends with her father should, for the foreseeable future, continue to be supervised by the maternal family. The father’s proposal is that supervision by the maternal family should continue until April 2016. He proposes that from January 2016 he be accompanied on his visits to the child by Mrs N. The father proposes that, from April 2016, Mrs N become the supervisor and the visits take place outside the home of the maternal family.
Dr L, when specifically asked about the appropriateness of that proposal, agreed that Mrs N would be an appropriate supervisor.
Mrs N swore an affidavit and gave evidence in the proceedings. She gave evidence of occasions upon which she had intervened when the father behaved in a manner in which she believed was inappropriate. It was her evidence that she had chastised the father when he spoke to the mother in a manner that she herself believed was inappropriate.
She gave evidence of an occasion when the father wished to take one of her children to an event and she refused to allow him to do so because she was of the view that his presentation was inappropriate.
Mrs N said she would have no hesitation in putting the child’s interests, happiness and safety above that of the father and I accept her evidence.
Mrs N gave evidence that if an incident occurred at any time during the time the child spent with her father that caused her concern she would advise the mother and she would advise the father’s treating doctors. To the father’s credit he agreed to orders which provide that he would advise his treating practitioners that they were authorised to receive information from Mrs N and would authorise his treating practitioners to give information to the mother.
I am satisfied that Mrs N is an appropriate supervisor.
The mother also seeks orders that the father be restricted to one member of the family being present at each visit. In circumstances where Mrs N will be present at every visit, it is, in my view, appropriate for the father to be able to introduce other members of his family, at his and Mrs N’s discretion. Until 1 April 2016 this should not be done without the agreement of the maternal family but after 1 April 2016 that consent is not required.

SKYPE

The parties disagree about the frequency of Skype sessions. The mother wants to limit the sessions to once each week and the father proposes two.
Concerns are raised by the mother about the father’s ability to remain focused on the child during the sessions and the child’s ability to concentrate on her father. The mother alleges, but the father denies, that the father has skyped the child when driving. If that has occurred, it would be dangerous for the father and uninteresting for the child and it should not occur again.
Since the father’s time with the child is to be limited, and she is getting older and her attention span is increasing, she should have a Skype session with her father twice each week, for not less than five minutes, although the sessions could be extended provided that the child is engaged and interested.

PARENTAL RESPONSIBILITY

Pursuant to s 61DA of the Family Law Act 1975 (Cth) (“the Act”), the Court is required, when making a parenting order in relation to a child, to apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. The presumption is rebuttable upon evidence that satisfies the Court that it would not be in the best interests of the child.
It was Dr L’s opinion that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
Dr L, in her report, commented upon the father’s difficulties in communication with the mother and maternal family members. She gave an example, in interview with her, when she directly challenged the father about some less than favourable aspects of his relating to the mother, he became extremely agitated, appeared to have a poor tolerance to this line of questioning, and “would perseverate on particular ideas, most notably the mother’s alleged manipulation and possibility that she had ‘planned’ her leaving him.”
Dr L also commented on the father’s forensic history as reported in the subpoena material of a historic tendency to find it difficult to engage in interpersonal relationships which involve conflict. It was Dr L’s view that the father’s personality would impact on his parenting in a number of ways but specifically that there would be significant impediments to the parents being able to communicate with each other and resolve difficulties as well as practically implementing arrangements for the child. Dr L said:
In these circumstances, I think that the father’s underlying personality traits mean that the mother will have substantial difficulty in maturely and calmly communicating with the father. In much the same manner that there has been conflict between the parents previously, I think that the father’s personality is such that if the mother is making decisions or has opinions that are different from his that the father will have an extremely poor capacity to communicate with her and may resort to emotionally manipulative means to intimidate and control the mother. Further, I think that the father’s personality is such that he embellishes and exaggerates particular accounts of things. For example, I found his discussion around the issue of how he responded to the mother’s personal items and effects around the home to be minimising his own role in these things and exerting blame on the mother and maternal family members. If such behaviours are symptomatic of an underlying personality trait then they are likely to continue and play out in many ways in parenting decisions.
Dr L expressed concerns that, if there is a disagreement between the father and the mother in relation to major long term issues for the child, then the father is likely to be emotionally manipulative towards the mother.
Dr L’s evidence was completed before the evidence of the parties. In cross-examination the father gave evidence that he had determined, at least six months ago and possibly 12 months ago, that he would not press his application for the mother and the child to return to live in Melbourne. The interviews with Dr L had taken place on 14 November 2014 and at that stage the father was still pressing his application for the mother to return. Accordingly, his change of mind must have occurred after 14 November 2014 and probably after 1 December 2014 when Dr L’s report was released, containing her strong recommendation that the mother and the child remain living in Sydney.
Despite the fact that the father has, for at least six months, held the view that he would not press his application for the mother to return with the child to Melbourne, he did not tell the mother. The father was well aware that the mother was fearful and apprehensive about the possibility of a return to Melbourne. In the report of Dr L dated 1 December 2014, Dr L says:
The mother presents herself as somewhat fearful of the father and says that this fear would be exacerbated in circumstances were she not with her family and if she were to be living in Victoria. The mother said that she has been over time concerned about her own safety and is most concerned about the unpredictable nature of the father’s behaviour. She also has concerns about the father’s aggressive, verbally denigrating and verbally intimidating behaviour in the past. The mother has, I note, a rather passive and acquiescing personality style which means I think in these circumstances that she would find it very difficult to adequately communicate with the father in an appropriate manner to make decisions for [the child].
In circumstances where it must have been well understood by the father that the mother’s apprehension in relation to being ordered to return to Melbourne was causing her significant concern and anxiety, it is incomprehensible that the father, having formed the view that he did not wish to press the application, did not inform the mother.
He had every opportunity to do so. He could have caused his solicitors to write a letter to the mother’s solicitors. He did not.
He swore an affidavit in the proceedings on 14 July 2015 updating his circumstances but he did not include in that affidavit the fact that he did not press the mother’s return to Melbourne. It was not until the Friday before the hearing which commenced on Wednesday that his case outline disclosed that he no longer sought orders that the mother return to Melbourne.
No explanation was offered by the father for his failure to alleviate the considerable stress which the mother was suffering. The father’s failure to tell the mother that he no longer pressed this most significant part of his application, in the absence of any explanation by him of his reasoning process, causes great concerns about his willingness to engage in emotional manipulation of the mother. It is difficult to interpret his actions in any other light. At the very least, it raises concerns about his attitude to the mother’s psychological well-being and his lack of insight into the effect of the mother’s psychological well-being, and her being stressed about the prospect of returning to Melbourne, on the child.
Dr L in her oral evidence was asked to weigh up the benefits to the child of her father having equal shared parental responsibility against the detriments. She suggested that the child would benefit, as she grows older and begins to understand family relationships, in that she would have a sense of regarding her father as someone important who is concerned about her, and her wellbeing and education, rather than as somebody who is on the periphery of her life. Dr L said that this might have flow on benefits to the child’s self-esteem and her sense of identity.
However, Dr L assessed that the risks which would be caused by shared parental responsibility would out-weigh the benefits. The risks she identified were the risk to the child’s psychological health if the father engaged in emotional manipulation of her and of the mother and the risk that practical decisions would not be implemented.
Dr L was of the view that the nature of the communication between the parents is such that it would be difficult for the mother to have input into decision making and there was a risk that decisions would therefore be delayed. Dr L considered that there was a risk that the father’s difficulties in personality functioning would mean that anything the mother might choose to do in terms of exercising parental responsibility would be made quite difficult if the father did not agree.
Dr L also said that there would be risks that the father would be emotionally manipulative of the mother and possibly involve the child in the manipulation, in that the father may involve the child in the dispute or expose her to aspects of the conflict which, Dr L said, would be a psychological risk factor for the child.
The weight of the evidence suggests that it would not be in the child’s best interests for there to be an order for equal shared parental responsibility. However, that is not to say that the mother should have free range to make decisions in relation to the child. The orders will provide that any decision which the mother proposes in relation to the child must first be communicated to the father and he must have the opportunity to provide his input into the decision making process before any decision is implemented.
The areas of major long term decision making in relation to which the parents are required to consult are limited. They relate to the child’s education, her religious and cultural upbringing, her health, her name and any changes to her living arrangements that make it significantly more difficult for her to spend time with her father.
In relation to the two latter considerations those are matters which will be dealt with in the course of these proceedings, leaving education, religion, culture and health as the issues upon which the mother and the father will be required to consult.
Both of the parents come from a Christian background. Although the mother is Roman Catholic and the father belongs to an Orthodox church the mother agrees that the child could spend time with the father at Orthodox Easter and there does not appear to be any significant difference between them in relation to matters of religion.
The mother proposes that the child would attend the local Catholic primary school close to where she and the child are living and the father does not oppose that decision.
At the present time there have not been any issues in relation to the child’s health that have required discussion.
However, in the event that any issues arise in relation to these limited areas of major long term issues the mother will be required to consult with the father in an attempt to reach an agreement.

THE CHILD’S SURNAME

The mother applies for an order that she be permitted to change the child’s surname from “Krivkin” to “Wilkie”. In support of that application the mother relied upon paragraph 23 of her trial affidavit in which she deposed:
[The father] and I registered [the child’s] surname at birth as [Krivkin]. I would like to change [the child’s] surname from [Krivkin] to [Wilkie]. [The child] does not identify with either [the father’s] surname or my surname, and it is my desire to have [the child] have the same surname as I use. When I married [the father] I changed my surname to [Krivkin]. I have not officially changed it back to [Wilkie] yet, even though we are divorced, although I do use [Wilkie] at times. The only reason I have not yet officially changed my surname back to [Wilkie] is because [the child’s] surname is still [Krivkin] and I do not wish for [the child] and I to have difference (sic) surnames.
In cross-examination the mother said that she continues to use the name of Krivkin and that is the name on her driver’s licence. That is also the name on the child’s birth certificate.
No pressing circumstances are advanced in the mother’s case which necessitate the mother changing her name from that which she adopted on marriage to the father and that which was chosen by both parents to be the child’s name.
The decision in relation to the child’s name is a decision which must be made having regard to her welfare as the paramount consideration. The Court is required to take into account the short and long term effects of any change in her name, any embarrassment that is likely to be experienced by her if her name is different from that of her mother, any confusion of identity which might arise for her if her name is changed or not changed and the effect which a change in surname might have on the child’s relationship with her father.
Nothing compels or requires the mother to change her name from “Krivkin” to “Wilkie”. There is no reason advanced by the mother why it is either impracticable for her to continue to use her married name or compelling for her to change her name.
Even if the mother decides to change her name, from her married name to her maiden name, it is a common circumstance in our society that children, who have been given the surname of their father, have a different surname from that of the mother, either because she has chosen not to adopt the father’s surname, or because she has reverted to her maiden name after separation.
At the present time the child has a developing sense of identity with the father and the paternal family but an overwhelming identity with the maternal family. Retaining the father’s surname may assist the child in understanding the importance of the paternal family and the fact that she, having the same surname, is a member of that family and has a place within it. This is particularly so in circumstances where the orders will not provide for the father to exercise equal shared parental responsibility and where the child will not, for the foreseeable future, experience her father and the paternal family in their own homes in Melbourne. In those circumstances, the child’s name is a symbolic connection with her paternal family and her inclusion in that family.
It may be the mother’s wish to revert to her maiden name. She does not demonstrate any compelling reason to do so. In circumstances where the child will retain the surname of her father, the mother may choose not to change her name. The child may ask, as she is older, why she and her mother have different names, if that situation occurs. The explanation is simple and can be given in an age appropriate way.
Nothing in the evidence of the mother establishes that it is the child’s best interests for her to have a surname that is not the name her parents agreed upon at her birth.
The application will be rejected.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 7 August 2015.

Associate:

Date: 7/8/2015

[2015] FamCA 651

7 August 2015

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Procedural Fairness

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