Zelman and Mundy - [2010] FMCAfam 92

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZELMAN & MUNDY

[2010] FMCAfam 92

FAMILY LAW – Parenting orders – with whom the children live – issue of mental health – expert evidence.

Family Law Act 1975, ss.60CA, 60CC, 60B, 60CG, 61DA

Lindsay & Baker (2007) FLC 93-347
JG & BG (1994) FLC 92-515

Applicant:

MR ZELMAN

Respondent:

MS MUNDY

File Number:

HBC 660 of 2007

Judgment of:

Baker FM

Hearing dates:

18 & 19 August 2009, 16 & 17 December 2009, 2 & 25 February 2010

Date of Last Submission:

25 February 2010

Delivered at:

Hobart

Delivered on:

10 March 2010

REPRESENTATION

Counsel for the Applicant:

Mr Petersen

Solicitors for the Applicant:

McGrath & Company, DX 70205, BURNIE

Counsel for the Respondent:

Mr Lewis

Solicitors for the Respondent:

Temple-Smith Partners, DX 70307, DEVONPORT

Counsel for the Independent Children’s Lawyer:

Mr Walker

ORDERS

The orders made 23 July 2007 be discharged.
The children [X] born [in] 1999, [Y] born [in] 2001 and [Z] born [in] 2003 (“the children”) live with the mother.
The mother and the father have equal shared parental responsibility for the children.
The father spend time and communicate with the children as follows:
(a)Each alternate weekend from 6.00pm Friday until 6.00pm Sunday.
(b)By telephone each Monday, Wednesday and Friday (when the children are not otherwise spending time with the father) between 6.00pm and 7.00pm.
(c)Each Easter school holiday:
(i)In 2010 and each alternate year thereafter from 6.00pm the Thursday preceding Good Friday until 6.00pm Easter Tuesday.
(ii)In 2011 and each alternate year thereafter from 6.00pm Easter Tuesday to 6.00pm the following Sunday.
(d)During the first week of the June and September school holidays from 6.00pm on the Friday that the school term ends until the following Friday at 6.00pm.
a) At Christmas as follows:
In 2010 and each alternate year thereafter from 11.00am 24 December until 8.00pm 24 December.
(i) In 2011 and each alternate year thereafter from 8:00pm 24 December until 4:00pm 25 December.
b)On Anzac Day from 6.00pm on the day preceding Anzac Day until 6.00pm on Anzac Day.
c)On Father’s Day from 6:00pm on the night preceding Father’s Day to 6:00 pm on Father’s Day.
d)At such further times as agreed.
In 2010 and each alternate year thereafter, the mother spend time with the children each fortnight during the Christmas school holidays, with the first fortnight to commence on the last day of the school year.
In 2011 and each alternate year thereafter, the father spend time with the children each fortnight during the Christmas school holidays, with the first fortnight to commence on the last day of the school year.
The mother spend time with the children on Mother’s Day from 6:00 pm on the night preceding Mother’s Day to 6:00pm on Mother’s day.
The mother notify the father of all medical appointments undertaken by the children and report to the father as to the outcome of those medical appointments as soon as practicable and further provide the father with any written report prepared by the medical practitioner as soon as practicable.
Both parents contact the other parent forthwith in the event that the children experience any medical emergency whilst in that persons care.
The mother provide to the father copies of all school reports and other educational information with respect to the children.
The parties communicate with one another by a communication book to be provided to other at changeover in relation to the needs of the children, including but not limited to medical treatment and diet.
In case of either parent being unable to care for the children due to a medical illness, the children remain with the other parent until such time as medical evidence relevant to the injury is provided and upon

48 hours notice being of the reinstatement of the parents time by the provision of such a medical report.
In the event that order 9 applies, the injured parent have telephone communication on Mondays and Wednesdays between 6.00pm and 7.00pm and fortnightly time, subject to any medical practitioner or psychiatrist / psychologist recommendations.
The alternate weekends referred to in order 4(a) be suspended during the father’s time with the children on school holidays and recommence on the first weekend following the resumption of school after the school holiday periods.
Within 14 days the mother enrol in a drug and alcohol rehabilitation service program such as the Bridge Program and complete the program and after completion of the program provide evidence of successful completion of the program to the Independent Children’s Lawyer and to the father.
Within 14 days the mother arrange personal counselling at an organisation such as Relationships Australia and continue to attend counselling at the frequency recommended by the Counsellor.
The mother ensure that she uses any medication prescribed for her at the prescribed dose.
There be no specific orders as to who the children are with on the children’s birthday and that the terms of these orders shall otherwise apply, provided that the parent with whom the children are not with, that parent shall have telephone communication with the children on the respective children’s birthday.
Both parents:
(a)Attend and complete, as soon as practicable, a Post Separation Parenting Program.
(b)Sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program.
(c)Pay and otherwise be responsible for all costs associated with the program.
(d)Provide evidence to the Independent Children’s Lawyer and the other parties lawyer that they have enrolled in the program.
(e)Provide evidence to the Independent Children’s Lawyer and the other parties lawyer that they have successfully completed the program.
Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Zelman & Mundy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DEVONPORT

HBC 660 of 2007

MR ZELMAN

Applicant

And

MS MUNDY

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application made by the father, who seeks parenting orders in respect of the three children of his relationship with the mother. He seeks that the children live with him and spend alternate weekend time and holiday time with the mother.
The three children of the relationship are [X] born [in] 1999, [Y] born [in] 2001 and [Z] born [in] 2003. They live in Devonport with the mother and the mother’s two other children, [D], who is 16 years old and [K], who is 1 year old.

Background

The parties commenced cohabitation in late 1998 and separated in 2005. On 23 July 2007, Consent Orders were made in this Court which provided that the children live with the mother and spend time with the father, who lives in [B].
The father commenced a relationship with Ms A in about September 2007. When the children spend time with the father Ms A is present although they each retain separate houses and finances.
On 30 September 2007, an incident occurred in which the mother assaulted the father with a knife. She was admitted to the [S] Clinic in [B] for several days. The father took care of the children and enrolled them in [A] School in [B]. In February 2008 the children returned to live with the mother and returned to [N] School.
After this incident the father applied for a change in the living arrangements for the children.

Evidence

The father relied on the following:
·Initiating Application filed 14 April 2008.
·Affidavit filed 3 August 2009.
·Affidavit filed 15 February 2010
·Affidavit of Ms A filed 3 August 2009.
·[N] School mid year report 2009.
The hearing of this matter was completed on 17 December 2009.

On 21 January 2010 the father filed an application to re-open the matter. During the hearing of the application, it became apparent that since completion of the hearing the father had commenced employment. The father had not included this information in his affidavit sworn 20 January 2010 in support of the application to re-open. I adjourned the hearing to enable him to file a further affidavit. On 25 February 2010 I heard the balance of the father’s application to re-open the matter. I dismissed the application. Counsel for the mother and Counsel for the Independent Children’s Lawyer did not oppose the father’s affidavit filed on 15 February 2010 being read into evidence.
The father’s affidavit filed 15 February 2010 indicated that he obtained employment with [Q] as a [tradesman] on a full-time basis on

18 January 2010. He works from 8.00am until 4.30pm each week day. He understands that on occasions, if necessary, he can vary these hours. He intends for the children to attend after-school child care for one and a half hours each day. If the children become sick or there is any difficulty with their care, he will rely upon his partner Ms A to assist him.
The mother relied on the following:
·Response filed 13 June 2008.
·Response filed 1 February 2010
·Affidavit filed 13 June 2008.
·Affidavit filed 18 August 2009.
·Affidavit of Ms D filed 30 June 2009.
·Affidavit of Mr T filed 1 February 2010
·Report of Dr Ratcliff dated 31 April 2009.
The Independent Children’s Lawyer relied on the following:
·Affidavit of Ms W filed 31 July 2009.
·
Reports of Ms Christina Brown dated 16 February 2009,

29 March 2009 and 12 July 2009.

Issues

The main issue in respect of where the children shall live was the mother’s mental health and its impact on the children. The mother has been diagnosed as having a borderline personality disorder. As a result of the incident which occurred on 30 September 2007, the father applied for a change in the long-standing living arrangements for the children. The mother opposed any change to their living arrangements.
The issue of the risk of relapse of the mother’s mental health was the area of conflict between the experts Ms Brown and Dr Ratcliff.

Ms Brown believed that there is a high probability of relapse. She recommended that the children live with the father and spend time with the mother. Dr Ratcliff was of the opinion that the risk of relapse is becoming much less likely and it is likely that there has been a maturation of the mother and mellowing of the disorder.
The position of the Independent Children’s Lawyer was unknown until all the evidence was heard. He recommended that the children remain living with the mother and spend alternate weekends and other special days with the father.

Relevant Law

Section 60CA of the Family Law Act 1975 provides:
In deciding whether or not to make a parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.
A court, in determining what is in a child’s best interests, must consider the primary considerations and the additional considerations set out in s.60CC, informed by s.60B, which set out the objects of Part VII of the Family Law Act 1975. Section 60B provides:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are set out in s.60B(2).
The s.60CC(2) primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Family violence is defined in s.4 as:
“Conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the persons family that causes that or any other member of that persons family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.”
Section 60CG requires the Court to ensure, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, than an order does not expose a person to unacceptable risk of family violence.
Orders should therefore be made which protect children from the risk of harm and ensure that they have a meaningful relationship with both of their parents wherever appropriate.
The court is also required to consider s.61DA which provides the presumption, that if a court makes a parenting order, it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of child abuse or family violence and may be rebutted if not in the best interests of the child.

I shall firstly consider the matters set out in sub-section 60CC(2) being the primary considerations and the additional considerations in s.60CC(3).

Section 60CC considerations

Section 60CC(2)(a)

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

The proposals of each party enable the children to have the benefit of a meaningful relationship with both parents. Both parents have loving relationships with the children.

Section 60CC(2)(b)

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.

The children were exposed to family violence on 30 September 2007 when they witnessed their mother approach their father with a large kitchen knife and raise it above her right shoulder in a stabbing motion. She yelled at him, “I am going to fucking kill you”. The children watched the incident from the father’s car and screamed. They suffered nightmares for months after the incident and did not want to speak with the mother. A police family violence order was made on 30 September 2007. It expired on 30 September 2008. The mother was convicted of assault and received a probation order for 12 months.
After the incident the mother spent several days in the [S] Clinic in [B]. The children lived with the father in [B] and attended [A] School. The mother started spending time with the children in October 2007 and they returned to live with her in February 2008. They returned to [N] School.
The mother gave evidence about what caused her to behave in this way. She said that at the time, she and the father were on good terms and were still having a sexual relationship. They visited each other’s homes regularly and were trying to repair their relationship. When the father stopped visiting her and started seeing Ms A she felt distraught, rejected and depressed. She said that she regrets the incident and feels guilty. At the time she was using alcohol which she believed contributed to the incident. She said that when she got depressed she relied on alcohol.
Since the incident the mother has done a lot of self-examination. She said that she has not drunk alcohol for two years and does not want to touch it. She can recognise her symptoms and is aware when she should seek help. Her biggest problem at the time of the incident was not accepting help because she thought she could do it all herself. She is currently taking anti-depressant medication and attends her general medical practitioner regularly. She has sought help from Good Beginnings for emotional support.
The father said that the mother had never been violent prior to this incident and had never threatened his life. His concern was that the children will be exposed to further incidents.
The Court must assess whether the mother presents an unacceptable risk of behaving violently or abusively. Counsel for the Independent Children’s Lawyer referred to Lindsay & Baker[1] in which her Honour Bryant CJ said that the unacceptable risk test requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.[2]
[1] (2007) FLC 93-347 at page 78, 79 and 80
[2] Lindsay & Baker
Not only does direct physical or emotional abuse adversely affect the welfare of children, violence occurring between family members may have the potential to cause the children stress and harm them. I refer to what Chisholm J said in JG & BG[3] :
“The authorities, then, require the Court to make a judgment about the relevance of family violence to the welfare of the children. In what circumstances is family violence relevant to the children’s welfare? Its relevance may be more obvious in some situations than in others. Where the violence is directed at the children themselves, it is obviously and directly relevant to their welfare. Section 64(1)(b)(a) expressly requires the Court to have regard to the need to protect the child from abuse and ill-treatment. Similarly, when violence is committed in the presence of the children, it will obviously have the potential to frighten and distress them”.
[3] (1994) FLC 92-515
Ms Brown, a psychologist, was appointed in December 2008 to prepare a family report. Dr Ratcliff, a psychiatrist, was consulted to provide an assessment of the mother’s mental health. The experts differed in their opinion of the likelihood of a relapse of the mother’s mental health.
Ms Brown prepared three reports. She was cross-examined extensively. Ms Brown outlined a history of the mother’s admissions to the [S] Clinic in [B]. The mother has a history of admissions to the [S] Clinic in [B]. In 1990 she was placed in foster care and made a ward of the State. In 1991, when she was living in a youth shelter, she had a traumatic separation from her boyfriend. She was admitted to the [S] Clinic because she was suicidal and was diagnosed with Adjustment Disorder. She was again admitted in 1994 and diagnosed with Personality Disorder. The next admission was in 1997 after a boyfriend crisis. The diagnosis was Acute Adjustment Disorder. She had a second admission in 1997 due to a situational crisis. Later in 1997 she was admitted again with the diagnosis of Behaviour Disorder. Subsequent admissions were in September 2002, May 2006 and the most recent was in September 2007.
Dr Ratcliff agreed with Ms Brown’s summary. Both Ms Brown and

Dr Ratcliff were of the opinion that the mother’s past diagnosis of Borderline Personality Disorder was appropriate.
Ms Brown concluded that the children should live with the father and spend time with the mother, due to the mother’s mental health and its impact on the children. Ms Brown was of the opinion that the incident of 30 September 2007 caused some continuing psychological effect to the children and a repetition of such conduct or a relapse of the mother’s mental health problems could impact adversely on the physical and/or mental wellbeing of the children. Ms Brown was of the view that there is a high probability that the mother’s past patterns of behaviour will continue.
Ms Brown administered the Minnesota Multphasic Personality Inventory – 2 (MMPI-2) test to each adult. She said that the mother’s MMPI-2 profile was valid and the clinical profile suggested that she has some psychological problems, a borderline personality disorder and adjustment disorder with schizoid lifestyle. She also has had an alcohol-drug problem. She said:
“She has long term personality problems in which avoidance of others and a schizoid lifestyle are prominent. Her unusual thinking and bizarre ideas, as well as her alcohol and/or drug problem, which she acknowledged, should be addressed in therapy. With regard to the care of the children, it was of concern that at times she may experience unusual thoughts, delusional beliefs, hallucinations and poor judgment. Family relationships are likely to be affected by her moody, irritable, unfriendly and negativistic behaviour. There are likely to be times when [Ms Mundy] may exhibit severe confusion, delusions of persecution and/or grandeur, feelings of unreality, and preoccupations with abstract or obscure matters to the exclusion of specific aspects of life. She may have trouble taking care of herself and may not be responsive to others in her environment.”

During cross-examination, Ms Brown said that indications of these behaviours came from the test results and information from the [S] Clinic records. She said, however, that she has never observed the mother as being affected by moody, irritable, unfriendly or negativistic behaviours. She did not see any evidence of this behaviour on Dr T’s medical file of the mother. She did not discuss this behaviour with
Dr T. She agreed that she should have reworded her report to reflect that the evidence came from the mother’s past behaviour, but may not necessarily be part of her future behaviour because this behaviour cannot be predicted. She agreed that there was no evidence of this behaviour applying to the mother at the present time.
Ms Brown said that:
“In the DSM-IV, the essential feature of borderline personality disorder is ‘a pervasive pattern of instability of interpersonal relations, self-image and affects, and marked impulsivity that begins by early adulthood and is present in a variety of contexts. Real or imagined abandonment will result in inappropriate anger, panic or fury. These abandonment fears are related to an intolerance of being alone and a need to have other people with them. Their frantic efforts to avoid abandonment may include impulsive actions such as self-mutilating or suicidal behaviours. Unstable and intense relationships become a pattern. Individuals with this disorder display impulsivity in at least two areas that are potentially self-damaging. They may gamble, spend money irresponsibly, binge eat, abuse substances, engage in unsafe sex, or drive recklessly. Individuals with borderline personality disorder often express inappropriate, intense anger or have difficulty controlling their anger. On the positive side, people with borderline personality disorder do seem to develop greater stability as they age.”
During cross-examination, Ms Brown acknowledged that the DSM-IV is a diagnostic tool and permits a broad range of features for different disorders and the features described may or may not be present. She agreed that there was no evidence that the mother gambles, there was no evidence of her spending irresponsibly, binge eating, abusing substances (apart from smoking), or engaging in unsafe sex. When asked whether she used all these things as a factual basis for her report, she answered “If you looked at the history and looked at what is in the best interests for the children, they need stability and appropriate care.” Then she said “I had to take information from the [S] Clinic and the doctors as correct.”
In her first report Ms Brown said that there is a high probability that the mother’s pattern of behaviour will continue. She suspected that by her having the main care of the three children and the baby, there is likely to be more strain on the mother. During cross-examination,
Ms Brown conceded that she had no knowledge of how the mother’s medication will assist her. She agreed that she could not reliably say that the care of all children is likely to put too much strain on the mother, if she is getting extra help and using medication. She agreed that she had no idea whether the mother is going to be stable in the future whilst on her medication.
Ms Brown administered the Trauma Symptom Checklist for Young Children (TSCYC). This is completed by a parent when the children are too young to complete it. Ms Brown said she asked both the mother and the father to do it for [Y] and [Z]. There were significant differences in their responses. The mother scored [Y] as a perfectly well-adjusted child. Ms Brown believed that the mother was trying to present [Y] in the best possible light. She said that on the other hand, the father acknowledged that [Y] can be difficult at times and was significantly upset after seeing her mother attack the father with a knife.
It became apparent, during the cross-examination of Ms Brown, that the father’s answers were not his answers alone, but the joint answers of the father and Ms A. Ms Brown accepted that the Court could not therefore reliably assume the results reflected the father’s responses. Ms Brown said that she left one form to be filled out rather than two forms because she had run out of time. She acknowledged that it would have been better for the forms to be completed separately by the father and Ms A.
Ms Brown was aware that the children did not receive any therapy after seeing the mother attack the father. The father and Ms A did not tell her of any concerns about [Y]’s health. She agreed that there was no evidence, other than the test results, of [Y] experiencing intrusive reliving of post-traumatic memories. There was no evidence of nightmares, post-traumatic play, flashbacks and fearful responses to environmental stimuli. There was no evidence of irrational behaviour, apart from one tantrum, or disassociation, apart from observing [Y] to be withdrawn.
During cross-examination, Ms Brown acknowledged that neither parent could be totally relied upon to answer the questions appropriately, because of their involvement in family court proceedings. She agreed that with the benefit of hindsight that this might have been the reason that the mother’s results showed what they did. Ms Brown agreed that the TSCYC test results for [Y] and [Z] should be disregarded.
Ms Brown conceded that the test results in respect of [X] could possibly be different from day-to-day. They are reliable for a month, it depends on what is happening at the time. She said that [X] showed the same caution in approach at both parent’s homes. Ms Brown said that [X] seemed reluctant to open up about her feelings. She agreed that this could be because she was afraid she might say the wrong thing and it was possible she could have been concerned about the Court proceedings.
During cross-examination, it became apparent that Ms Brown had received material from Ms A and the father. She did not disclose to the Independent Children’s Lawyer or the mother’s Counsel that she had seen it. This material is contained in exhibits M3, M4, M5, M7 and M8. It included an eleven page report from [D]’s father, a six page statement from his partner, a statement from [D] and statements from Ms M and Ms G. This material is highly prejudicial to the mother.
Ms Brown said she glanced at the material and she did not use it because it was not relevant.
Ms Brown relied on information from Ms R from Child and Family Services about the mother’s daughter, [D]. Ms Brown outlined what [D] had told Ms R. The mother used to take her drinking and to parties and the mother was generally highly intoxicated and stoned. Further in her report Ms Brown said:
“this was the time when [Ms Mundy] was binge drinking on weekends and the time when [D] said her mother had been encouraging her to drink excessively”. [4]
[4] Page 10
At the time of the hearing, Ms Brown was not aware that [D] had returned to live with her mother. When asked whether she was surprised about this she answered:
“Yes, no perhaps not because adolescents can go back to situations where they are unhappy for no apparent reason. It is not unusual to go back to situations where they have been abused.”
Ms Brown said there was no way of finding out whether what [D] said was correct or not because if she asked the mother she would disagree. She said that the mother did tell her about [D], but her stories were quite different. She conceded that she did not investigate what was reported to her about [D].
Ms Brown’s view that the children should live with the father was reinforced when she said the mother made an allegation of sexualised behaviour between [Z] and [Y]. She said “the children will be a lot more settled and psychologically safe in their father’s and [Ms A]s care.” Her view was that the mother had used the allegation of sexualised behaviour for the Court proceedings. She was of the view that the mother should have informed her of the sexualised behaviour when she first completed the test forms for her.
In respect of the sexualised behaviour which the mother said occurred in a tent, Ms Brown said that it was windy, a hole was made in the tent and it had been wrecked completely, so the children did not have an opportunity to play in it. She said “I find it strange that [Z] and [Y] were supposably playing in a tent, which had collapsed, had a hole in it and had been out in the weather for over a month…” This statement was made because Ms Brown accepted what the children had told her.
In the mother’s solicitors’ letter dated 1 April 2009 to the father’s solicitors and to the Independent Children’s Lawyer, the mother alleged that she was not provided with an opportunity to speak to Ms Brown about the incidents, as the assessment was observation based and no enquiry or opportunity for enquiry was afforded to the mother. This was contradicted by Ms Brown who indicated that there was opportunity for the mother to have informed her about the incidents.
The mother’s evidence was that there were two incidents, the first which occurred in about February 2009 and the second when the children were playing in a tent. The mother’s evidence was that she considered that the children were behaving inappropriately. She reported the incidents to the school social worker because she was concerned that the father would criticise her if she did not do anything. The mother said the tent remained erected in the backyard after the first attempt to “camp out” overnight.
During cross-examination the mother’s evidence was not shaken. She said that the incidents occurred. She did not raise the issue of sexualised behaviour of [Z] and [Y] with Ms Brown at the time of the first interview, as nothing was happening at that time. The second incident occurred after the first interview. Dr Ratcliff agreed that the mother’s response was appropriate. She had noticed the behaviour and had dismissed it as childhood behaviour.
Whilst I do not accept that the mother did not have the opportunity to inform Ms Brown of the incidents, I accept the mother’s explanation that she had discussed with the children the inappropriateness of their behaviour and that there had been no repeat episode at the time she completed the test forms. I accept the mother’s explanation that she reported the incidents due to her concern about protecting herself against further accusations by the father and Ms A. I am of the view that the mother did not make up the incidents for use in these proceedings.
Dr Ratcliff’s evidence was that the mother’s condition meets or has met the majority of the clinical criteria for a diagnosis of borderline personality disorder according to DSM-IV, complicated in the past by alcohol abuse and cannabis use. He was of the view that her current mental state appears to be stable, with the most recent episodes of disturbance more that 2 years ago and no reported readmissions to hospital since that time. Dr Ratcliff said that a natural history of borderline personality disorder shows a tendency for its most marked behavioural characteristics to abate with maturation, usually in the third decade of life.
Dr Ratcliff was of the view that relapses of the mother’s behaviour would appear to have been generally situational and any major emotional event necessitates close support. He did not rule out a relapse. He indicated that the absence of a major episode of disturbance necessitating hospitalisation, and a favourable response to an adequate dose of anti-depressant medication without significant psychological involvement on the part of the prescriber, suggested that relapse is becoming much less likely, probably due to maturation combined with the avoidance of intoxicants.[5]
[5] Paragraphs d and e – Dr Ratcliff’s report
Dr Ratcliff said that the mother’s borderline personality disorder creates a vulnerability and can create a depressive reaction. The mother’s medication is associated with the depressive element of her condition. He said that because there has been no disturbance in recent times, it is likely that there has been maturation and mellowing of the disorder. His view was that if there is a relapse, is not likely to be for a long period and would not impact on the mother’s parenting ability upon her return home, if hospitalisation became necessary.
In respect of [D], Dr Ratcliff said that a teenage girl with behavioural problems would impose a burden on the mother. If [D] had stopped drinking, changed her circle of friends and appeared to be well settled in family life, his concerns would be allayed and she could be an asset in the family. Dr Ratcliff thought that regular contact with a counsellor would be beneficial for the mother and should be maintained long-term until the younger children are independent.
Dr Ratcliff was of the view that the mother wanted things to be different and was working towards this. She has recognised the problems. Dr Ratcliff said that any depressive episodes which the mother will have are likely to be transient over days or a week. He said that it was not likely to be for a long period of time. Dr Ratcliff said that if another relapse occurred and the mother was hospitalised and the children were cared for by the father, there would not be an impact on the mother’s parenting ability upon a return home.
In respect of whether the mother will have a relapse, I accept the submission of Counsel for the Independent Children’s Lawyer that
Dr Ratcliff’s opinion should be preferred to that of Ms Brown, as this issue is more his area of expertise. Dr Ratcliff’s evidence was clear, concise and unshaken in cross-examination.
Ms Brown’s report was based on the test results she administered, her observations in both homes and all the other material available to her. Ms Brown made an assessment of the TSCYC results for [Y] and [Z] on the basis of responses from the father and Ms A. She incorrectly attributed their joint responses as the responses of the father in her report. During cross-examination it became clear that she had done this. She conceded that she should have used two forms for each person, but she ran out of time.
Ms Brown ascribed symptoms included in the DSM-IV to the mother, but was not able to demonstrate a basis for doing so. Additionally, she relied on information about [D] and the mother, which she had not investigated.
Ms Brown was not aware of the medication the mother was taking and indicated that there was no medication to help her condition long-term. This conflicts with Dr Ratcliff’s evidence.
Whilst Ms Brown said that she did not consider that the documents, which the father and Ms A provided to her as relevant, she read the material and did not disclose that she had read it to the Independent Children’s Lawyer or the mother’s solicitors.
For these reasons I prefer the opinion of Dr Ratcliff to that of
Ms Brown.

Additional considerations

Section 60CC(3)

The relevant additional considerations pursuant to s.60CC(3) are as follows: -

Section 60CC(3)(a)

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

The children have not expressed any strong views as to which parent they wish to live with. [X] expressed to Ms Brown that shared care would be the best option. Because Ms Brown said that [X] was careful about what she said in both households and seemed not to want to cause upset, I do not place weight upon her expressed view.

Section 60CC(3)(b)

The nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child).

The children have loving relationships with both parents. They have a good relationship with Ms A.
The children have a positive relationship with the siblings in the father’s home and the mother’s home.

Section 60CC(3)(c)

The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.

I have a concern about the willingness and ability of the father to facilitate and encourage a close and continuing relationship between the children and the mother. Since the incident in 2007, the father and Ms A have gathered evidence for these proceedings in a way which has led the parties into “trench warfare,” as described by Counsel for the Independent Children’s Lawyer. The father and Ms A provided the children’s school with copies of correspondence between lawyers, and a copy of a report from the Emergency Department of the [N] Hospital about [Y]. Ms A informed the school that she contacted Child Protection Services about the mother in respect of [Y]’s urinary tract infection. The affidavit of Ms W, the principal of [N] School, indicates numerous telephone calls made by Ms A to the school[6]. The father and Ms A sent an email to the school in which they asked the staff to reconsider allowing the children regular weekly time with the school counsellor and to report to the Child Protection Department if the children discussed serious problems[7].
[6] Annexure “D”
[7] Annexure “F”
Ms W said that Ms A took a prominent role in the contact with the school. The numerous emails sent on 23 March 2009 indicate an overly protective role in respect of the children’s health and seemed to be an evidence gathering exercise by the father for these proceedings. Notwithstanding the communication with the school, the father and
Ms A have not attended parent/teacher interviews or parent help on any occasion. The father had no contact with the school until 25 March 2008. [X] commenced school in 2004, [Y] in 2006 and [Z] in 2008.
The email communication between the parties was abusive and inappropriate. The father addressed the mother as Miss Mundy and required her to address him as Mr Zelman and his partner as Ms A. This resulted in the cessation of communication between the parties. The mistrust of the father by the mother has arisen partly from the attitude of the father and Ms A towards her.
During cross-examination the father agreed that Ms A has taken a prominent role with the care of the children and with communication with their school. He believes that it is necessary for a partner to take a prominent role, as both parties have the mother and father role in the home. He agreed that all the email communication, between the school and him and between him and the mother, was typed by Ms A. He had input into the emails and signed off on them. He agreed that Ms A has had a significant role in preparing his case for these proceedings, but it was all under his guidance. The father said that Ms A typed a statement for [D], who dictated it to her. It was antagonistic towards the mother. The father did not accept that this could be damaging for [D].
The father could not understand that it would be preferable for Ms A to take a back seat. The father’s attitude causes me some concern about his willingness and ability to facilitate and encourage a close and continuing relationship between the children and the mother, if they were to live with him in the future.
In my view, the father has taken a subservient role to Ms A in relation to the preparation of the father’s case for these proceedings and the communication with the children’s school and the mother. He has placed too much reliance on her and her proactive role with the children has been a source of problems for the relationship between the parties in their role as parents.
Ms A typed an 11 page statement of [D]’s father, Mr B. She also typed a statement from [D] with the permission of her custodial parents. She was 14 years at the time. When Miss A was asked whether she thought it was inappropriate for a 14 year old girl to make a statement against her mother she replied, “[D] offered but there was nothing to say we were going to use it”. Ms A said that [D] was not forced to provide a statement. She said she wanted to do it. When asked whether she thought that the making of the statement by [D], would reinforce in [D] the bad relationship with her mother, Ms A answered “it couldn’t have been any worse”. This statement and the other statements were provided to the father’s solicitors.

Ms A was asked during cross-examination whether she thought that the mother, by seeing another female come into the children’s lives, could become resentful. She answered, that given that the mother had experienced this before, she would be accustomed to it.
Ms A’s attitude towards the mother is a concern, given the intentions of her and the father to live together in 2010, the intention of the father for her to care for the children if they become sick during his work hours or if any difficulties in their care arise, and her influence upon the father.
There was no issue raised about the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father.

Section 60CC(3)(d)

The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

Ms Brown’s evidence was that all three children have an attachment to both parents. When she was asked about the children not spending time with their sister [K], Ms Brown did not think that this was an issue for [X]. She was not sure about [Y], although she believed that she would be fine because [Z] and [X] will be there too. She believed that [Z] would cope with a change of living arrangements because he gets on well with the father.
In respect of the move of the children to a new school, Ms Brown accepted that the children are well settled at [N] School. She said that depending when a change of school occurs it can be traumatic for children and the sooner a change occurs the better. She said that the ideal situation would be that the children do not change schools.

Section 60CC(3)(f)

The capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;

The father made an issue of the mother’s capacity to care for the children’s health. An example of this was when [Y] had a urinary tract infection. The mother was given a bottle of medication for [Y] for the infection. The bottle did not have the prescribed dose or the name of the prescribing medical practitioner on it. However, the father sent the mother an email with the details. The mother said she did not give the medication to [Y] because she did not trust the father. She was concerned about allegations the father had made in his affidavits. She was afraid that he would be making other allegations, so she sought legal advice about the use of medication.
The mother said that [Y] was perfectly healthy when she arrived home from school and did not complain to anyone at the school that she was in discomfort. [Y]’s school teacher indicated to Ms W that she saw no signs of [Y]’s symptoms of urinary tract infection at school.
I do not accept that the mother was irresponsible in respect of [Y]’s health. She made an appointment at the first available opportunity for [Y] to see her own medical practitioner.
The father also criticised the mother for [X]’s absences from school in 2005 for 19.5 days, in 2006 for 29.5 and in 2007 for 35.5 days. [Y] was absent in 2007 for 22.5 days. Nearly all the absences were explained by the mother and the school did not raise any concerns.
Ms W’s evidence was that [X] is doing well at school. Although [Y] is struggling academically, she progressed very well in 2008 and participated in a reading recovery program and attended speech therapy. [Y] talked positively about events at both parents’ homes. She did not present with any emotional problems. [Z] is below average academically and has passed all his developmental milestones on the border line. All three children are sociable and mix well with other children.
The mother has taken an active interest in the children’s welfare at school and their education. She has regularly attended parent help and parent/teacher interviews. She saw Ms W in early 2008 and was concerned that the children should get any support they may need. She participated in the setting up of a support team. Ms W’s evidence was that the mother at all times appeared sober, rational and behaved appropriately at the school. Her observations of the mother with the children indicated a close and loving bond between them.
The mother’s capacity to parent the children was questioned by the father because of the problems she has had with [D]. The mother’s evidence was that [D] had been living on and off with her over a 2 year period. She was abusing alcohol and drugs, which the mother found difficult to cope with. She sought the assistance of a youth shelter to help with behaviour management. The mother said that she feared for [D]’s safety and supported her by arranging counselling for her. She said that [D] is now over that period. She was diagnosed with Attention Deficit Hyperactivity Disorder several months ago. She was doing long distance education but will attend [D] College in 2010.
Notwithstanding the above criticisms made by the father about the mother, during cross-examination he agreed that there is no issue about the mother looking after the children. They do not complain to him. There was only one complaint from [X], who told him that the mother grabbed her by the throat on one occasion. The mother was cross-examined about this. She said that she pushed [X] towards her bedroom with her hand on the back of her neck. She denied that she grabbed her by the throat. She admitted that she had shook [D] when she was 11 months old and had sought help from the Child Protection Department. She was aware that it was the wrong thing to do. I accept the mother’s evidence, I found her to be a credible witness who answered questions directly and made appropriate concessions.
The father agreed that the children are happy living with the mother, that they have friends in [B] and at school. There are no issues about the mother feeding and clothing the children.
The mother was asked by Counsel for the Independent Children’s Lawyer to describe a typical day in her household. Her description of the children’s routine was detailed and indicated how busy she is caring for them. She is able to cope with their care with the assistance of her mother.
Ms Brown was of the view that the father’s household was more organised than the mother’s household, with different parenting styles. This was not surprising given that there are five children in the mother’s household.
The mother did not raise as an issue the father’s capacity to provide for the needs of the children. The evidence indicated that the father has a good parenting capacity.

Section 60CC(3)(i)

The attitude to the children and the responsibilities of parenthood demonstrated by each of the child's parents.

The mother has a good attitude to the responsibilities of parenthood. She has a positive and good relationship with the school and is involved in school matters. There is a concern of the effect of her mental health upon her capacity, if and when she has a relapse of her mental health problems, which led to the events of 30 September 2007.
The father has a good attitude to the responsibilities of parenthood. The problem is that he relies too much on Ms A, which I have already referred to.

Section 60CC(3)(j)

Any family violence involving the child or a member of the child's family.

The father’s application was made as a result of the incident which occurred in September 2007.

Section 60CC(3)(l)

Whilst parenting orders are never final, the order which I intend to make should minimise the prospect of future litigation.

Section 60CC(4) and (4A)

These sections overlap to some extent with sub-paragraph (f) and (i).
The father criticised the mother for travelling to Morocco in mid 2007 to meet with a man she had met online. She took [X] with her. She had approached the father some two months before making a booking, to seek his response to her proposal to take [X]. The father signed the passport application for [X] to travel with the mother. They left in early July 2007 and returned one month later. The mother communicated with [Y] and [Z] and the father with [X] by using a web-cam and the MSN instant messaging program.
I have already referred to other incidents which occurred since separation.

Parental responsibility

Both parties sought an order for equal shared parental responsibility, notwithstanding that they have had communication problems since September 2007. The Independent Children’s Lawyer also supported an order for equal shared parental responsibility.
The presumption of equal shared parental responsibility is rebutted by reason of family violence however, both parents are close to their children and want the best for them. They are actively involved with the children and, with assistance, should be able to improve the level of communication between them. I intend to order that both parties attend a “Parents In Contact” program at Relationships Australia and use a communication book.
In my view, it is in the children’s best interests for an order for equal shared parental responsibility to be made.

Time spent

Neither party submitted that it was in the children’s best interests for them to spend equal time with each parent. This is not practicable because the father lives in [B] and the mother lives in Devonport. The children attend school in Devonport.
Both parties propose that the children live with them and spend time with the other parent each alternate weekend, on special days and for one half of the school holiday periods.

Conclusion

I do not accept the recommendation made by Ms Brown that the children live with the father and spend time with the mother. The children are happy and well settled living with the mother, [K] and [D]. The evidence of Ms W, indicated the children are well settled at [N] School and there are no concerns about their relationship with the mother or her care of the children.
In my view, the chance of a relapse of the mother’s mental health issues occurring and the children being harmed by a relapse is not an unacceptable risk. Safeguards can be put in place, including a requirement that the mother continues to take all medication prescribed by her treating medical practitioner, that she attend counselling with Relationships Australia and with an appropriate organisation for drug and alcohol counselling.
I am of the view that the mother now has an insight into her condition and has taken appropriate steps to make necessary changes, including taking her medication, seeking counselling help, ceasing the use of alcohol and/or drugs and seeking help from her mother.
I conclude that it is in the best interests of the children that they continue to live with the mother and spend time with the father each alternate weekend and on special days and half the school holidays. This will mean that they will continue to attend [N] School. These arrangements will promote a meaningful relationship between the children and their parents to maximise the benefit to the children of such relationships.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of FM Baker

Associate: Sita Buick

Date: 9 March 2010