ZEBRO & ZEBRO

[2018] FamCA 797

FAMILY COURT OF AUSTRALIA

ZEBRO & ZEBRO [2018] FamCA 797

FAMILY LAW – CHILDREN – With whom the child lives and spends time – Where the mother concedes child is to remain living with the father – Where the child will continue to spend supervised time with the mother presently – Where the child’s time with the mother will increase on a cautious and gradual progression to overnight time – Where there is a risk that any sudden change will destabilise the child and mother – Where the mother suffers from significant and ongoing mental health issues – Where the mother was unable to acknowledge at final hearing her mental health issues could recur – Where the mother has chosen not to maintain a relationship with a psychiatrist – Where the mother must communicate to the father her state of mental health  through a third party – Where the Court must balance the need to protect the child from exposure to the mother’s mental health issues with the need to promote a relationship between the mother and child – Where the father has provided a safe and secure home environment for the child.

FAMILY LAW – CHILDREN – Procedural – the role of psychologists in Family Court proceedings – Where the mother provided reports by a psychologist with whom there was no therapeutic relationship – Where the mother wished to use the reports as an authoritative voice for her own views – Where the court must make a determination as to the weight placed upon these reports.

FAMILY LAW – CHILDREN – Parental responsibility – Where there are competing proposals of parental responsibility – Where the father is awarded sole parental responsibility – Where the presumption of equal shared parental responsibility is rebutted – Where there is a significant level of mistrust and conflict between the parents – Where the parents have limited communication – Where the mother is unwilling and unable to communicate with the father – Where there is no capacity for the parents to discuss long term decisions relating to the child.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Zebro

RESPONDENT: Ms Zebro

INDEPENDENT CHILDREN’S LAWYER: Verekers Lawyers

FILE NUMBER: WOC 973 of 2015

DATE DELIVERED: 5 October 2018

PLACE DELIVERED:	Newcastle
PLACE HEARD:	Parramatta

JUDGMENT OF: Cleary J

HEARING DATE: 27 - 30 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Beck

SOLICITOR FOR THE APPLICANT: Caldwell Martin Cox

COUNSEL FOR THE RESPONDENT: Mr Smart

SOLICITOR FOR THE RESPONDENT: Suburb C Solicitors & Conveyancers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Alexander

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Verekers Lawyers

Orders

1. That all prior parenting orders in this Court and in the Federal Circuit Court relating to X, born … 2011 (“the child”) are discharged.

Residence

1. That the child live with the father.

Parental Responsibility

1. That the father shall have sole parental responsibility for the long-term care, welfare and development of the child.

2. That each parent have parental responsibility for the day-to-day decisions about the care of the child whilst she is living with or spending time with that parent.

3. When a decision about a long-term issue arises, the father shall take the following steps:

   (a)Advise the mother in writing of the decision to be made and the course of action he proposes in that regard;

   (b)Invite the mother to put forward her views and any counter proposal within a reasonable period of time nominated by the father;

   (c)Genuinely consider any response put forward by the mother providing it is made within the nominated time;

   (d)As soon as practicable, advise the mother in writing of the decision he has made.

4. The father shall have sole parental responsibility for obtaining and reviewing for the child any Australian travel documents (including a passport) NOTING that the father is the sole person whose consent, authority or signature is required to obtain travel documents and to authorise travel for the child outside the Commonwealth of Australia.

5. NOTING that the child presently attends B School, the father shall give the mother not less than 6 weeks notice before changing the enrolment of the child away from her current school, other than for progression to high school in due course.

Time with the mother

1. The child shall spend time with the mother as follows:

   8.1For a period of 6 calendar months [October 2018 to March 2019 inclusive] (“the 6 month period”) in the presence of an approved supervisor:

   8.1.1Each second Sunday of each calendar month from 10.00 am to 4.00 pm in the presence of a person approved as a supervisor by the father prior to these orders, commencing 14 October 2018.

   8.2In addition, during the 6 month period:

   8.3For a period of 3 months [October 2018 to December 2018 inclusive]:

   8.3.1Each fourth Sunday of each calendar from 10.00 am to 2.00 pm commencing 28 October 2018 without the necessity for an approved person to be present.

   8.4For a period of 3 months [January 2019 to March 2019 inclusive]:

   8.4.1Each fourth Sunday from 9.00 am to 5.00 pm commencing 27 January 2019 without the necessity for an approved person to be present.

   8.5Thereafter, for the balance of 2019 each second and fourth Sunday of each calendar month from 9.00 am to 5.00 pm.

   8.6Thereafter, subject to compliance by the mother with Order 16:

   8.6.1Each fourth Sunday from 9.00 am to 5.00 pm commencing 26 January 2020; and

   8.6.2Each full second weekend of each calendar month, from the later of, 10.00 am or the conclusion of any extra-curricular in which the child is engaged on Saturday morning, until 5.00 pm Sunday, commencing Saturday 11 January 2020.

   8.7Commencing in 2020, from 5.00 pm on Christmas Day until 5.00 pm Boxing Day in each even numbered year.

   8.8Commencing in 2021, from 10.00 am Christmas Eve until 10.00 am Christmas Day in each odd numbered year.

   8.9On Mother’s Day from 10.00 am to 5.00 pm each year.

2. Time with the mother is suspended:

   (a)During the term holiday period each year from the last school day at the conclusion of Term 2 until the first school day commencing Term 3; and

   (b)On the weekend of Father’s Day each year.

Changeovers

1. That for the purpose of changeovers, unless it is agreed otherwise, the parties or their nominees (being family members or close friends known to the child) shall collect and return the child to and from the McDonald’s Family Restaurant in Suburb C at the allocated times.

Communication

1. That until the child is 12 years old the mother shall communicate with the child by telephone/Skype/App on Tuesday and Thursday during school terms for up to 15 minutes between 7.00 pm and 8.00 pm with the mother to initiate the call to the mobile telephone number of the father or as he otherwise directs.

2. The father shall encourage and facilitate the calls and shall allow the child privacy to speak to her mother on each occasion subject to her wishes.

3. Thereafter, the father shall allow the child to make and receive telephone calls with the mother at any reasonable time.

Leave

1. The mother has leave to provide to her general practitioner and to her treating psychiatrist the following documents:

   (a)Report dated 21 August 2017 of Dr D, child, family and adult psychiatrist;

   (b)These orders and reasons for judgment.

Specific Issues

1. The father shall advise the mother of the name and practice details of the medical practice which the child attends.

2. That within 28 days of the date of these orders the mother shall advise the father in writing of the name and contact details of a person authorised by the mother to contact the father in the event that the mother is:

   (a)       Hospitalised;

   (b)       Ill and unable to spend time with the child;

   (c)       Discharged from hospital;

   (d)       Is well and able to resume spending time with the child.

3. Each parent shall keep the other advised of current contact details, including but not limited to mobile telephone number, landline number (if any), email address and residential address.

4. Each parent shall immediately notify the other of the child receiving urgent medical attention whilst in that party’s care.

5. In the event of mental illness/hospitalisation for the mother, time with the mother shall be suspended until the mother/her doctor/her nominee provide the father with a written confirmation from the treating psychiatrist for the mother that assesses the mother as well and able to care for a child.

6. That the mother or her nominee inform the father as soon as practicable if:

   (a)The mother is admitted to hospital;

   (b)There has been a deterioration in the mental health of the mother such that she is unable to care for the child;

   (c)The mother has been discharged from hospital; and

   (d)That the mother has regained mental health and is able to resume spending time with the child.

7. Subject to the direction of the principal of the child’s school, otherwise, each of the parents is entitled to:

   (a)Receive information about the progress and welfare of the child at school and events to which parents are invited or expected to attend;

   (b)The academic progress of the child in the form of school reports;

   (c)Obtaining school photographs; and

   (d)Attend activities at school to which parents are invited, such as concerts, swimming and sports carnivals.

Restraints

1. Each party is restrained from criticising by way word, deed and gesture, the other party and members of their extended family in the presence and hearing of the child and further, each shall remove the child from the presence of any third party behaving in that way.

The Independent Children’s Lawyer

1. The father shall bring the child to a meeting with the Independent Children’s Lawyer at a mutually convenient time so that the Independent Children’s Lawyer can explain in simple terms these orders and answer any questions the child may have.

2. The Independent Children’s Lawyer shall provide a copy of these orders to the principal of the child’s school.

Circumstances for Updating Report

1. In the event that either party in future decides to make a further application to the Court, the initiating party must first advise the other and thereafter each must join in the commissioning of an updating report by the Single Expert.

The Court Notes That

(A)The Single Expert Dr D recommends that:

i.The mother undertake Dialectical Behaviour Therapy (“DBT”) and/or Acceptance and Commitment Therapy (“ACT”) to develop her coping skills;

ii.Each of the parents seek out and undertake supportive, individual counselling to help them deal with stresses of being in this situation.

(B)Both parents have undertaken post-separation parenting courses, the Independent Children’s Lawyer proposed that both attend Relationships Australia to enrol in a suitable communication course within 4 months of the date of these orders to assist them in improving their ability and willingness to communicate about parenting their child.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: WOC 973 of 2015

Mr Zebro

Applicant

And

Ms Zebro

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders with respect to one child X, a girl aged seven.

History of Marriage

1. The parties began living together early in 2002.  They married in late 2006.  The subject child was born in mid-2011.  The parties separated about 12 months later.

2. In May 2016 the parties were divorced after almost four years of separation.

The Parties

The Applicant Father – Mr Zebro

1. The father is aged 37.  He is self-employed with his own business.

2. The father lives in Suburb E, a suburb of Sydney.  His household consists of the subject child, himself, his fiancée Ms F aged 33 and her daughter Y aged 10.

The Respondent Mother – Ms Zebro

1. The mother is aged 37.  She has recently re-entered the paid workforce working four days per week.

2. The mother has a history of physical injury and mental illness.  She suffered the painful disappointment of five miscarriages prior to the birth of the subject child in 2011.  In 2013 she was injured at work on three separate occasions, in February, August and October of that year.  Two of those injuries were blows to the head from a steel door.  After the third injury she ceased work and did not re-enter the workforce for almost five years.

3. In December 2013 the parties, by then separated for 18 months, were at the same party celebrating New Year’s Eve.  The subject child was present with her mother, then aged two and a half years. 

4. It is an agreed fact that the parties stayed overnight at the premises where the party was held and had sexual intercourse that night in a bed where the child had been put to sleep.  The father asserts that this was consensual intercourse.  The mother says she did not consent and suffered injuries as a result of the father’s sexual assault of her.  The mother did not attend a doctor and there is no evidence before me of any injuries.  The mother says she attended a counsellor later that month and that the counsellor recommended the mother report the matter to police.  The evidence on that point is that the mother had two sessions of counselling with the nominated organisation, the first one in September 2013.  The mother did not then, and has not since, made a report to police.

5. Later, between November 2016 and April 2018, the mother consulted a psychologist on six occasions.  That psychologist has prepared two reports which were annexed to her affidavit.  There is a reference in those reports/letters to the mother “dealing with the rape that occurred to her on New Year’s Eve in the early morning of 1 January 2013 in the presence of the child”.  The psychologist concedes that everything in her two reports was drawn from what the mother said and no other source.

6. The father was not cross-examined on the topic at all.  In my view that was a practical decision in the following circumstances:

   ·Where the mother has chosen not to make a statement to police;

   ·Where almost five years have passed;

   ·Where there is evidence from hospital notes that the mother had told her father two weeks after the event that she and the father had “got back together” on New Year’s Eve and had had sexual intercourse;

   ·Where the mother had contemplated reconciliation with the father up until the parties’ divorce in May 2016.  It was not until then that she regarded the marriage as having ended.

7. In the context of these proceedings the child lives with the father and ongoing residence is not in dispute.  Given the evidence above it is hard to see how the allegation could reach the criminal threshold beyond reasonable doubt and I am not asked to make a finding on the civil standard.

The Applications

1. There is no challenge to the child continuing to live with the father.  To her credit, the mother said that as much as she would love to have the child live with her, she had decided not to disrupt the arrangement that has been working reasonably well for the past two years.

The Father

1. By his Further Amended Initiating Application filed 24 May 2018 the father proposes a continuation of current interim orders for supervised time.  He also proposes sole parental responsibility for himself.

2. I infer from his oral evidence that the father was open to this child spending more time with the mother if the quality of supervision was consistent with the undertakings given by agreed supervisors.

The Mother

1. By her Further Amended Response filed 25 May 2018 the mother proposes equal shared parental responsibility and a graduated pattern of time commencing with one overnight each alternate weekend for 12 weeks, followed by a whole weekend from Friday afternoon until Sunday morning for 12 weeks and thereafter for five nights per fortnight in two blocks during term time and half school holidays and other special times.

Issues for Determination

1. The issues for determination are:

   a)Whether the parties should share equally in the long-term and in the short-term decision making for the child or that the father should have sole parental responsibility;

   b)Whether the child should spend more time with the mother than she presently does and further, whether time should continue to be supervised, and if so, for how long and by whom.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Father

   (a)Further Amended Initiating Application filed 24/05/2018;

   (b)Notice of Risk filed in the Federal Circuit Court on 16/05/2016;

   (c)Affidavit of the father Mr Zebro filed 15/06/2018;

   (d)Affidavit of the father’s partner Ms F 15/06/2018;

   The Respondent Mother

   (e)Further Amended Response filed 25/05/2018;

   (f)Notice of Risk filed in the Federal Circuit Court on 16/02/2016;

   (g)Affidavit of the mother Ms Zebro filed 15/06/2018;

   (h)Affidavit of the maternal grandfather Mr G filed 14/06/2018;

   (i)Affidavit of Ms H, psychologist, filed 15/06/2018;

   (j)Affidavit of the mother’s partner Mr J filed in Court on 27/08/2016;

   Reports

   (k)Child Dispute Conference Memorandum dated 29/01/2016;

   (l)Chapter 15.5 Single Expert Report, Dr D, dated 21/08/2017.

Oral Evidence

The Father

1. The father impressed as a considered and thoughtful witness.  There is no challenge to his care of the child. 

2. I concluded that the father has had two main considerations in his decision making for the child:

   a)That the mother herself and family members did not tell him when and why the mother went to hospital in 2014 and in 2016 which had led him to conclude that the mother and her family are unlikely to tell him future if the mother is unwell or hospitalised;

   b)That the child has taken time to achieve emotional stability after disruptive events in her young life including the following:

   (i)The separation of her parents in 2012;

   (ii)The mother going to hospital for six week blocks early in 2014 and again in May 2016;

   (iii)Each parent withholding the child from the other in the second half of 2015;

   (iv)A change of residence for the child from the mother to the father in May 2016.

3. The child has benefitted from therapy with a psychologist. 

4. The father is fearful of destabilisation for the child if she was again exposed to the mother being unwell or conflict between the parties.

5. I also conclude that the father is willing to be guided by the advice of the Single Expert and to comply with Court orders.  He has done so since the child has lived with him.

The father’s partner Ms F

1. The father’s partner is a health professional.  She has maintained a level of self-discipline in relation to the dispute between the parties over arrangements for the child.  She has not initiated telephone calls between herself and the mother or issued invitations to participate in school events.  She sees her role to be a source of love and support for the child and to support her partner’s approach to the raising of the child.

2. The relationship between the father and Ms F began in June 2014.  Ms F and her daughter Y began living with the father in June 2015.

1. Ms F knew and discussed with the father that the mother sent sexually explicit text messages to him requesting reconciliation.  She also knew that the mother telephoned and became emotional asking the father to have more children with her.  This was the case for the first two to three years of the relationship between herself and the father until the parties were divorced. 

2. To her credit, Ms F responded positively in 2016 to a request by the mother for a “mother to mother talk”.[1]  Ms F firmly rejected any discussion with the mother of the marital problems between the parties when they were married.  She did however acknowledge the mother’s fear that she would be replaced by Ms F in the child’s affections.  She reassured the mother that she would “never take your place as a mum to the child”.  She also told the mother that she would take care of the child as if she were her own. 

   [1] Affidavit of Ms F filed 15/06/2018, par 31

3. Ms F reports that the mother seems satisfied with the conversation. That view is supported by the mother’s oral evidence that she believes that the child and Ms F have a lovely relationship.

The Mother

1. My overall impression of the mother is that she is focused on her relationship with her daughter, no-one matters more to her.  There have been blinkered aspects to that focus.  Although the mother does not contest residence, she is resentful about the child living with the father and how that came about. 

2. The mother has shied away from understanding the extent to which her episodically poor mental health has led to the situation of the child living with the father.

3. Having heard all of the evidence, especially that of the Single Expert, I conclude that the mother has not reached the stage of acknowledgement that it is more likely than not, that she has a long-term mental illness which requires professional management and commitment to medication.  There are positive signs that she is beginning to accept that that is the situation.  However, on many occasions throughout her cross-examination the mother said these words or similar words about her mental health: “I did suffer from a mental illness.  I’ve recovered.  I’ve moved on”.

4. After her first two admissions in quick succession to hospital which ended in early April 2014 the mother took prescribed medication and maintained stability.

5. During 2015 and into the early part of 2016 it is likely that the mother was un-medicated.

6. After her admission to hospital which ended in early June 2016 the mother was again medicated.

7. In late 2017 the mother with the guidance of her general practitioner commenced a trial of not taking anti-psychotic medication.

8. Early in 2018 the mother began to feel unwell, returned to the general practitioner, had her medication adjusted up and has maintained stability for the balance of 2018.

9. Because the mother had, at time of trial, not fully acknowledged that she more probably had a mental illness for life, she has not maintained a relationship with a psychiatrist.  The Single Expert, Dr D, stressed that critical to stability for the mother is the oversight and treatment of a psychiatrist working in combination with the mother’s general practitioner with whom she appears to repose considerable trust.  Dr D set that out in the Single Expert Report of August 2017.

10. Dr K, a psychiatrist who was approached by the mother for a forensic report in March 2018 made the same recommendation noting that if the mother wished to return to him as a patient he was willing to accept her.  Unfortunately the mother had not, to date of trial, taken that course.

11. During the course of cross-examination information about the state of her mental health, her own behaviour, and information provided by her family to doctors at the hospital was all received by the mother as new information. 

12. This is not a criticism of the mother.  She has been very unwell indeed including suffering catatonia.  She is able to remember feeling scared and terrified but unsurprisingly cannot remember in an insightful way what she was otherwise saying and doing.  She was less compliant in 2015 with follow-ups, probably on the basis that she felt well and saw no need to attend for check-ups as often as had been recommended.  She missed appointments, including a mental health review in October 2014 and in 2015 the child missed a considerable number of days of preschool, 42 in that year.  The mother agreed that on some days she had not been feeling well enough to get the child to preschool.

13. The mother has her financial affairs managed by a financial controller.  The initiator for that assistance was her father who was concerned about her money management.

14. Overall, in the context of this litigation, the mother has invested considerable effort in obtaining reports in an attempt to prove that she does not have mental health problems.  This is an unfortunate outcome.

15. The intention of orders made in 2016 in the Federal Circuit Court and in 2017 in this Court were for the provision of treatment reports as confirmation that the mother was indeed receiving treatment.

16. I concluded that the mother is quite unable to communicate directly with the father.  The following matters inform that conclusion to some extent:

    ·The mother did not read the father’s affidavit.  She said she thought that she was not supposed to read it and she did not know that she should.

    ·The father’s solicitor contacted the mother’s solicitor on the topic of the subject child being seen by a psychologist.  The mother did not agree that the child should see a psychologist, “I didn’t think she needed it at the time, she was very little, very little.  I didn’t feel comfortable that my little girl was seeing a man I didn’t know”.  The mother however said nothing to the father and simply gave no instructions to her solicitor in response.  She did contact the psychologist once on 4 April 2016 to tell him that she did not approve of the child seeing him and to resist having any contact with the psychologist herself.

    ·Finally, on the child’s seventh birthday there was a period of two hours time for the mother to spend with the child.  The mother knew that she did not have an approved supervisor for that visit but she did not contact the father to discuss the matter with him or propose her new partner as a possible supervisor or any other solution.  Rather, she went along hoping that the father would simply agree to the visit taking place without an approved supervisor, although there is nothing about the father’s conduct in the past that suggests that he was likely to agree.  I consider that the mother was hopeful but really avoiding direct communication.  The mother expressed it herself in this way when asked how conversation about issues involving the child could take place, “I could put my differences aside but really I doubt it.  He sends me horrible texts.  We don’t see each other, he doesn’t involve me in anything”.

    ·The mother has felt sad and left out about the child’s activities at school.  She has not contacted the father about it.  She has the school app which identifies special events and timing for activities but has not attended at the school for fear of getting into trouble.

    ·There could be no doubt that the mother loves the child and wishes to spend more time with her including weekends and holiday time.  The Single Expert advised caution and gradual progression.  I accept that evidence particularly in circumstances where the Single Expert also said the mother had a somewhat dependent personality and there was some risk of her becoming dependent on the child.  Further, that overnight time would be a stress for the mother and should not be introduced too soon, “Good enough day time contact, is better than poor overnight contact.”

The Maternal Grandfather

1. The maternal grandfather has been the main support for the mother through her adult life.  He is a committed and supportive father and grandfather.  He became somewhat aggressive in cross-examination in defence of his daughter.  His oral evidence about his circumstances led me to the conclusion that this reaction flowed from the fact he has recently discovered he is not well himself, that his partner had recently had a death in her family and that he felt overwhelmed by the calls on his time in circumstances where he is about to move in and become a carer for his ailing mother, as well as looking after himself and his partner.

2. I have no doubt that he greatly loves his daughter and granddaughter [the subject child] but he openly and properly conceded that he cannot continue to be a regular supervisor.

3. I conclude that the mother has not been entirely candid with her father about changes in her medication and the state of her mental health but there is no criticism of the mother or the maternal grandfather on that account.  The mother is 37, wishing to lead an independent life and has now met a new partner.  The maternal grandfather wants to see his daughter spend more time with her own daughter and has taken the view that she has been well treated medically and is now well.

Ms H, psychologist for the mother

1. Ms H has been a psychologist in practice for 37 years.  Unfortunately she agreed to prepare letters in support of the mother on 17 March 2017 and 13 April 2018.  These were at the request of the mother and on each occasion included information provided by the mother.  There was no disclosure that the psychologist had not met the father or the child, nor did she have information from any other source.

2. Ms H readily conceded that there had been no therapeutic relationship developed in the six sessions with the mother over an 18 month period.[2]

   [2] First visit 14/11/2016, last visit 11/04/2018.

3. The mother had been referred by her general practitioner for psychological management pursuant to a mental health plan.  It is clear that what the mother wanted was an authoritative voice to express her own views about what should happen with the child and complaints about the father.  No psychologist is obliged to provide a forensic report and in these circumstances I can place no weight on the material contained in this affidavit or its two annexures.

Mr J, the mother’s partner

1. Mr J had met the mother a few times before they commenced a relationship on 6 May 2018.

2. Mr J is a tradesman, he is aged 27.  He presently lives in the home of his grandparents but is spending five days a week with the mother with an intention to move in on a permanent basis as soon as this trial had concluded. 

3. He impressed as a genuine and affectionate man, aware of his new partner’s mental health problems, at least to the extent that he knew she suffered from anxiety and depression.  He is hopeful of a permanent relationship and a family with the mother.

4. I consider that he is a serious person who would take the care and safety of the subject child seriously.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.  The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental Responsibility

1. The relationship between the parents has been adversely affected, not so much by the fact of the mother’s mental illness but by the erosion of trust and confidence that they previously felt for each other post-separation.

2. The father was offended and subsequently mistrustful that he was not told by the maternal family why the mother was hospitalised in 2014 and 2016.  He was affronted by the mother accusing him of slapping the child across the face in 2015 and by the mother accusing him of having raped her on New Year’s Eve in 2012.

3. The mother is both unwilling and unable to speak to the father, including by text.   

4. In that setting I consider that the presumption of equal share parental responsibility for the parents of the child has been rebutted.  There is no capacity for the parents to identify issues for decisions to be made, to discuss them, to consult, to compromise and move forward.

5. In the interests of the child who is living with her father, he should have sole parental responsibility but should both consult and report back to the mother on major issues.  Fortunately for the parties the child attends a school which she is likely to attend to the conclusion of her primary education.  Likewise, since it is a faith based school there appears to be no dispute about religious instruction.

6. The father has a record of having attempted to include the mother in therapeutic services for the child which have been quite productive and helpful to her.  The mother may reconsider her position in future if the father takes the same course of inviting the mother to participate.

7. An order will be made putting a formal structure in place for advice and consultation between the parties with the ultimate authority to make decisions resting with the father.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. There is a meaningful relationship in place between the child and the mother but I conclude that there is a real risk of attenuation of that relationship unless there is a progression to longer periods of time without the need for the presence of a supervisor. 

2. I accept the evidence of Dr D that to leave supervision in place without prospect of development will detract from the further development of relationship between the child and her mother.

3. That risk of losing a meaningful relationship with her mother is balanced against the risk of the child being exposed to the mother when she is mentally ill or in the early stages of becoming that way, such that the child is out of her depth and feeling responsible to look after her mother, which at her age she would be quite unable to do.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The child has just turned seven. She described to the Single Expert her wish that her parents lived together, together with her father’s partner and child Y whom the child regards as a sister. 

2. Dr D interpreted that wish as the child wanting more time with her mother.  It is hardly surprising.  The child lived with her mother until she was about four and a half years of age and although she has settled in well to living with her father in his household, a few hours, always in the presence of a family member, is not an easy or natural setting as a permanent arrangement.

3. I take the view/wish of the child, young as she is, into account in this matter.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The child has her most important relationships with each of her parents and with the father’s partner Ms F, who is a loving and protective presence in her life.  Ten year old Y also means a lot to the child.

2. The maternal relatives are all well known to her; her grandfather and her aunts.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The capacity of the parents is an issue. 

2. Although the father was criticised during the trial for being controlling, I do not accept that criticism.  He has come to understand, although not by an easy path, that the mother has suffered serious mental illness on three occasions now; postnatal depression after the birth of the child and stress induced psychosis in 2014 and 2016.

3. Both of the parents, the mother herself and the father have not fully understood the extent of her illness or the implications for the child and each other.  The mother’s family have had a tendency to protect the mother and conceal the extent of her illness from her.  The father and his family have had a tendency to protect the child and feel resentful about the concealment regarding the mother’s health and hospitalisation.

4. The parties are both good parents.

5. When she is ill, the mother is unable to provide appropriate care for the child and also at that time, lacks insight into her own potential impact on the child.  There is clearly a need for a mechanism for time between the mother and the child to be suspended if the mother is unfortunate enough to suffer further bouts of mental illness.

Any other fact or circumstance that the court thinks is relevant

1. The Single Expert raised the value of a mechanism being put in place for the mother or her family to advise the father if the mother becomes ill.

2. An order will be made for the mother to nominate someone now who is authorised at all times to pass on information about the health and any hospitalisation of the mother to the father. Complete candour will be critical.

3. The role of this person will be especially important if time for the child with the mother needs to be suspended and restored in future. The period of time for which time between the mother and child should be suspended can be kept to the necessary minimum this way.

4. If the father gains trust and confidence that he is being kept well advised, the child will benefit.  

Conclusion

1. It is a positive sign that the mother, through her counsel, consented to orders proposed by the Independent Children’s Lawyer based on recommendations of Dr D.  His most significant recommendation was that the mother ensure that she had a psychiatrist who could work in combination with her general practitioner to provide oversight and advice.

2. The mother is willing to take that step, although to date she has not seen the need for it, having felt that she was well and mental illness was behind her. The development of symptoms, if they do happen, can then be picked up early so that dramatic illness and sudden hospitalisation might not again be necessary.

3. When she is well the mother is a loving, engaged, interested parent wanting to be present to support and watch the child in school, in extra-curricular activities and to share enjoyable experiences during periods of contact.

4. The mother would like to progress to overnight time as quickly as possible.  The father advocates caution and does not wish to relinquish the presence of a supervisor.  A middle way must be taken which allows the child to be safe but also to really engage with her mother.

5. Orders will be made to achieve that end.  The orders provide for overnight time to commence at the beginning of 2020 on a weekend in each calendar month.

6. In the event orders are complied with and time develops in the way the orders foreshadow, the parties might later reach a point of being able to agree for the child to spend more time with her mother at weekends and block holiday periods.

1. In the event that they differ about that, provision has been made for either party wanting to vary the orders to first approach the other in order to commission an updating report by the Single Expert for their joint benefit.  That was a recommendation made by the Single Expert that the review by him should be conducted after two years.

2. It would certainly be of assistance to the Court if the parties did feel obliged to engage in further litigation, to have that updating assessment. Of course it would be preferable if that did not happen.

3. The best outcome would be changes negotiated between themselves as a result of some recovery of trust and improved communication between them as parents.

4. Orders are made accordingly.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 5 October 2018.

Associate: 

Date: 5 October 2018