Ditcher & Fetzer 2014 FamCA 175


A child aged 2 years had lived primarily with the father since separation, and the mother applied for the child to live with her for equal time.  When the relationship ended the father withheld the child and the mother was soon after admitted for a short period to a mental health unit experiencing anxiety.  The mother was later again admitted to hospital for further treatment for several weeks for a condition diagnosed by a single expert as psychotic depression.  The mother acknowledged the need for continued medical supervision for her psychiatric condition and for the father to be kept appraised about her progress.

The single expert gave evidence that the mother lacked full understanding about the cause and severity of her illness because she attributed her condition to situational stressors rather than to its biological origin.  The expert opined that while situational stressors may precipitate an episode of psychotic depression, the mother had a significant biological predisposition to the illness.  The mother had attributed her episodes of illness entirely to the oppressive and manipulative behaviour of the father.  The mother had decided to discontinue her prescribed medication on one occasion.

The judge found that the definition of “family violence” is liable to encapsulate behaviour characterised in that way if the mother subjectively felt coerced, controlled, or fearful because of the behaviour.  The mother had complained to the family consultant about feeling controlled and isolated by the father.  The single expert considered the father had obsessional traits but was unable to offer an opinion about whether any controlling behaviour of the father was an inherent trait or a response to the mother’s psychiatric condition (personality obsessive).  The father acknowledged that he could be abrasive and not tactful.   The judge found that the mother did not seek to employ any finding of “family violence” to influence orders of the court.

The ICL proposed that the parties have equal shared parental responsibility, subject to the father having the right to finally determine any deadlock between the parties over decisions related to major long term issues.  The judge found that if one party has the power to unilaterally break a deadlock then the allocation of parental responsibility is not equal at all as the knowledge that such power is vested in one party is an inherent disincentive for that party to exercise the parental responsibility with the genuine effort to compromise that is demanded by law.  The judge rejected the proposal for one party to make final decisions in the event of deadlock.

The judge ordered that the child’s residence with the mother be conditional upon the mother continuing a therapeutic relationship with a psychiatrist until such time as the psychiatrist certifies in writing the mother no longer needs psychiatric care (conditional access, therapy for parent).