Addington & Pierce
[2023] FedCFamC2F 718
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Addington & Pierce [2023] FedCFamC2F 718
File number(s): BRC 2854 of 2021 Judgment of: JUDGE COATES Date of judgment: 4 July 2023 Catchwords: FAMILY LAW – parenting – child missing school in mother’s care – child does not miss school when with father – child has psychological conditions – father seeks change of circumstances – best interests Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 165 Date of last submission/s: 23 May 2023 Date of hearing: 23 November 2022, 24 November 2022 and 15 March 2023 Place: Brisbane Counsel for the Applicant: Mr B. Dodd Solicitor for the Applicant: Michael Lynch Family Lawyers Counsel for the Respondent: Ms K. Oakley Solicitor for the Respondent: Robert Bax & Associates ORDERS
BRC 2854 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ADDINGTON
Applicant
AND: MS PIERCE
Respondent
ORDER MADE BY:
JUDGE COATES
DATE OF ORDER:
4 JULY 2023
THE COURT ORDERS:
1.That all previous Orders be discharged.
2.That the mother and father have equal shared parental responsibility for the child X born in 2014 (“the child”) including but not limited to decisions relating to major long-term issues as the term ‘major long term issues’ is defined in the Family Law Act 1975 (Cth), s. 4, and:
(a)They will consult each other about issues requiring parental decisions;
(b)They will make a genuine effort to come to a joint decision; and
(c)In particular, but not limited to, the parties will:
(i)Consult about medical treatment for the child before any appointment is made; and
(ii)Consult about any school in which the child is to be enrolled.
3.That subject to Order 2(c) above neither party shall cancel or re-schedule any medical, psychological or allied health or referrals appointment/s currently existing for the child;
4.That each parent shall be responsible for the daily care, welfare and development of the child when she is living with or spending time with that parent.
5.That in the event of an emergency, the parent with care of the child shall be solely responsible for the child’s emergency care and treatment, whilst informing the other parent as soon as practicable and within a reasonable time, and the parents shall share equally that medical cost.
6.That the child live with the father and spend time with the mother at all times as may be agreed between the parties, but failing agreement:
(a)Each alternate weekend, commencing Friday 30 July 2023 from 3.00pm Friday until 3.00pm Sunday; (or any date aligning with the weekends X, the child’s brother, would normally not be staying with the father);
(b)Each alternate Wednesday, commencing 5 July 2023 from 3.00pm Wednesday until 8.30am Thursday.
School holiday time
7.That during the school holidays the child shall spend time with each of the parents on a week about basis such that:
(a)In odd numbered years:
(i)For the first week and each alternate week thereafter with the father;
(ii)For the second week and each alternate week thereafter with the mother;
(b)In even numbered years:
(i)For the first week and each alternate week thereafter with the mother;
(ii)For the second week and each alternate week thereafter with the father;
(c)The first week shall commence at 5.00pm on the first Friday after the child has concluded school that term;
(d)Each week shall commence at 5.00pm on Friday and conclude at 5.00pm the following Friday;
(e)That unless otherwise stated herein, the parent whom the children is going to stay with collect the chid from the other parents residence at changeovers; and
(f)2023 is to be regarded as an ‘odd’ year, 2024 as an ‘even’ year and so on.
8.That the times referred to at Order 6 herein shall otherwise be suspended for the duration of the school holidays, and shall recommence when school recommences as if there had been no intervening holiday period.
Special times with each parent
9.That notwithstanding any other Order herein the child shall live with the father and spend special time with the mother as per the orders specified in the paragraphs below which are subject to the following terms:
(a)‘From’ means the conclusion of the child’s school day including any after school activities and if not a school day, then 4.00pm unless stated otherwise;
(b)‘Until’ means the commencement of the child’s school day including any before school activities and if not a school day then 9.00am unless stated otherwise;
(c)In the event that the child is not attending school on any of the changeover days then the parent spending time with the child is to collect the child from the other parent’s address at the commencement of their time with the child; and
(d)That in the event the child’s routine time with either parent as per Order 6 would otherwise apply then time referred to in Order 6 shall be forfeited by that parent so that the child may spend time with the parents in accordance with Order 10 to Order 20 herein. For the avoidance of doubt, ‘routine time’ is subject to ‘special time’.
Easter
10.That over Easter the child will spend time as follows:
(a)In 2023 and each even numbered year thereafter, the child is to spend time with the father from 9.00am Good Friday until 9.00am Easter Sunday and with the child to spend time with the mother from 9.00am Easter Sunday overnight until the next day; and
(b)in 2024 and each odd numbered year thereafter, the child is to spend time with the mother from 9.00am Good Friday until 9.00am Easter Sunday and with the child to spend time with the father from 9.00am Easter Sunday overnight until the next day;
Mother’s Day
11.That the child is to spend time with the mother on Mother’s Day from 9.00am to 4.00pm;
Mother’s birthday
12.That the child is to spend time with the mother on the mother’s birthday each year as follows:
(a)On a weekend day, from 9.00am that day, overnight until 9.00am the next day; or
(b)On a week day, from that day until 9.00am the next day.
Father’s Day
13.That the child is to spend time with the father on Father’s Day from 9.00am to 4.00pm.
Father’s Birthday
14.That the child is to spend time with the father on the father’s birthday, each year, as follows:
(a)On a weekend day, from 9.00am that day, overnight until 9.00am the next day; or
(b)On a week day, from the birthday day until 9.00am the next day.
Child’s Birthday
15.That the child is to spend time with both the mother and the father on the child’s birthday, each year, as follows:
(a)In 2023 and each even numbered year thereafter, the child is to spend time with the father from her birthday eve until her birthday day (1.00pm on her birthday if it is not a school day) and with the mother from her birthday day, overnight, until 9.00am the next day; and
(b)In 2024 and each odd numbered year thereafter, the child is to spend time with the mother from her birthday eve until her birthday day (1.00pm on her birthday if it is not a school day) and with the father from her birthday day, overnight, until 9.00am the next day.
Halloween
16.That on Halloween the child will spend time with the mother from 9.00am on 31 October until 9.00am on 1 November.
Christmas Day
17.That the child is to spend time with both the mother and the father on Christmas Day each year as follows:
(a)In 2023 and each even numbered year thereafter, the child to spend time with the father from 4.00pm Christmas Eve overnight until 4.00pm Christmas Day, and spend time with the father from 4.00pm Christmas Day until 4.00pm Boxing Day; and
(b)In 2024 and each odd numbered year thereafter, the child is to spend time with the mother from 4.00pm Christmas Eve until 4.00pm Christmas Day, and spend time with the mother from 4.00pm Christmas Day until 4.00pm Boxing Day.
New Years Eve
18.That on New Years Eve the child will spend time with each parent from 4.00pm on 31 December until 4.00pm on 1 January as follows:
(a)In odd numbered years:
(i)With the father;
(b)In even numbered years:
(i)With the mother;
(c)That unless otherwise stated herein, the parent whom the children is going to stay with collect the child from the other parents residence at changeovers;
(d)2023 is to be regarded as an ‘odd’ year, 2024 as an ‘even’ year and so on.
X’s Birthday
19.That the child is to spend time with the father on her sibling, X’s, birthday, each year, as follows:
(a)On a week day, from the conclusion of school that day, until the commencement of school (or 9.00am if not a school day) the next day; or
(b)On a weekend day, from 9.00am until 5.00pm.
Special events
20.That the child is to spend time with the mother and father on such occasions as that parent is celebrating special events, including but not limited to birthdays, weddings, christenings, funerals and graduations for family members, upon receiving reasonable notice of such events occurring of seven (7) days and not less than 48 hours’ notice. The other parent shall not unreasonably refuse that request, however such refusal shall not be regarded as a contravention of this Order.
Communication between parent and child
21.That the child is at liberty to contact either parent at all times by telephone, SMS or electronic communication. Should the child express a wish to communicate with either parent, the other parent shall do everything in their control to facilitate this and the child shall be afforded peace and privacy for the purposes of that communication.
22.That the child be made available for telephone and Facetime/Skype calls with each parent every Sunday for a duration of up to thirty minutes commencing at 5:00pm each day, and the other parent will do all things necessary to facilitate the call.
23.That for the purposes of that telephone/Facetime/Skype call, the parent with whom the child is not spending time is to initiate the call to the other parent’s mobile phone or land line and that parent will facilitate the call. In the event that the parent cannot facilitate the call, that parent is to contact the parent with whom the child is not spending time by SMS text message, notify why the call cannot occur and nominate an alternative time for the child to call the parent.
Communication between the parents
24.That the parents are to keep each other informed of their present residential address, email address, landline and mobile telephone number, and to keep each other informed of any changes of address and telephone number up to one month prior and no later than two (2) days after any such changes.
25.That the parents are to use email messaging to communicate about the care and welfare arrangements of the child and for any detailed communications.
26.That the parents are to use phone or SMS text messaging to communicate any immediate and/ or urgent change to the child’s care arrangements during their time with the child.
27.That when the child is seriously unwell or injured, the parent providing care to notify the other parent regarding the child’s wellbeing, by phone call and/or SMS text messaging as soon as it is reasonably practicable, and in any event within one hour and ensure the other parent is kept informed of:
(a)Any serious medical problems/emergencies or serious illnesses suffered by the child;
(b)The treating doctor/ hospital and relevant contact details;
(c)Any medication that has been prescribed for the child;
(d)Any follow up appointments with any specialist following the serious illness or injury;
(e)Any change to the child’s prescribed medication;
(f)Parents will reply to emails, sms etc as soon as possible or within 24 hours; and
(g)Parents will make every effort to cooperate, communicate and get along.
Passports and overseas travel
28.That upon receiving a written request to do so, each parent will sign any and all documents necessary to facilitate the:
(a)Production of an Australian passport for the child;
(b)Renewal for an Australian passport for the child; and
(c)Replacement of an Australian passport for the child.
29.That the costs of obtaining the passports shall be paid by the requesting party.
30.That upon the issuance of same the child’s Australian passport shall be held by the mother, and returned to the care of the mother within seven (7) days of any overseas travel.
31.That either parent will be permitted to travel overseas with the child during the periods of time that the child is living or spending time with that parent provided that:
(a)The parent wishing to travel provides written notice of the intention to travel to the other parent;
(b)Such notice to be provided not less than 60 days prior to the intended date of departure;
(c)All notices contain a detailed itinerary in relation to the planned travel including flight times and a copy of a return flight confirmation and contact details, including address details and telephone contact details, for the child during the travel;
(d)That any travel will not be taken during any school term except where expressly agreed to by the parents (which should not be unreasonably withheld) or where the travel is for the child’s educational and/or sporting benefit, general advancement or wellbeing; and
(e)That the travelling parent is to ensure that the child has been provided with any immunisations prior to the travel, with such immunisations to be recommended and administered by the child’s treating doctor.
Specific issues
32.That this Order is authority for any health professional, including a general practitioner, dentist, medical specialist, and hospital or ambulance service to provide both parents with all details of the condition of the child and their treatment, at the expense of the requesting parent.
33.That this Order is authority for any school attended by the child to discuss all matters relating to the child’s welfare and education, and to provide both parents with full details about the child, including progress reports, child care or school reports, parent interviews, events, school or class photographs and other activities, at the expense of the requesting parent.
34.That the parents do all things necessary to encourage the child to be involved with and participate in school events and extracurricular activities and ensure that the child attends her weekly extra-curricular activities when it falls during their time spent with the child.
35.That the parents may attend together at the child’s school and extra-curricular activities, social or special events that fall during time the child is spending with one parent.
36.That neither party will denigrate or make derogatory remarks about the other party or members of the other party’s family or their friends, in the presence or the child.
37.That neither parent will question the child about the life of the other parent, nor involve the child in any adult issues, including discussing any aspect of the family law proceedings (regardless of whether same is ongoing, or concluded).
38.That each parent will provide reasonable notice if they intend on relocating to a location which is more than 25 kilometres from their current location.
39.That neither parent shall use, or permit any other person to use, corporal or physical punishment on the child.
Dispute resolution
40.That in the event that:
(a)The parents are in dispute about these Orders; or
(b)Agreement needs to be reached regarding the child’s upbringing, health, welfare, education and development; or
(c)These Orders require amendment or variation and the like; and
(d)The parents cannot resolve such matters between themselves then the current arrangements will be maintained and the parents agree that at first instance they will attend family dispute resolution such as mediation, Legal Aid conference or like service.
41.That the aggrieved parent shall be responsible for arranging such Family Dispute Resolution (“FDR”). Failing agreement between the parents as to that FDR appointment, the aggrieved parent shall nominate to the other parent three (3) FDR practitioners with their names, contact details, available dates and fees, one (1) of whom shall be chosen by the other parent within two (2) days of receipt of those details.
IT IS NOTED:
A.That pursuant to s.65DA(2) 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 fact sheet attached and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COATES:
A critical issue is facing the child X, aged 8.
She is missing a lot of school when in her mother’s care, a situation which does not exist when in the father’s care.
She is a child with high anxiety and autism.
With an inability for the parents to resolve this fundamental issue, the father seeks a change in living arrangements.
He sought that the child live with him and spend each alternate weekend Fridays to Sundays, and each alternate Wednesday overnight Thursday, with the mother.
He also sought an order for sole parental responsibility.
The child currently lives with the mother and spends time with the father.
Under final orders made 10 February 2020 that was Friday to Monday in one week and Tuesday overnight Wednesday in the other week, until Term 2 in 2020.
From the commencement of Term 2 in 2020 the orders provided for the child to spend from after school Monday until before school Wednesday in week one and from after school Friday until before school Monday in week two.
The orders provided that the parents exercise parental responsibility equally, however, that has not been occurring, the mother making many decisions stemming from the child’s psychological status, without involving the father.
In response to the application, the mother sought to reduce the child’s time with the father to alternate weekends only.
She sought to limit shared parental responsibility, taking the sole power for schooling and psychological-care decisions.
While there is evidence that the child has Autistic Spectrum Disorder, and although the father may not be convinced of the level of autism affecting the child, a fact used against him, such did not lesson the real difficulties the child is currently facing.
On the second day of trial, although no evidence was heard on the first day, the mother changed her position and handed up amended draft orders which would return the child to the time regime established in the orders of 10 February 2020.
A less than ideal event occurred when the trial had to go part-heard after two days on 25 November 2022 and 24 November 2022, resuming on 15 March 2023, with final submissions being received on 23 May 2023. Surprisingly, the father in his final submissions changed position and sought orders for equal shared parental responsibility, but with specific particularised orders that the parties consult each other on the child’s medical needs, as well as choice of school.
Further, while a change of residence was referred to during the hearing, because of evidence that the child knows and loves both parents, and because the court child expert was of the view that arrangements may change into the future, I have used the term a change of care arrangements.
THE LAW
The Family Law Act 1975 (Cth) (“the Act”) legislates considerations in coming to a best interest decision for a child.
In many respects the legislation states a common sense approach when a child is caught between the separation of parents.
The best interest decision is reached by applying the stated law to the facts of each particular case.
Section 60CA states that parenting orders are made with the best interests of the child being the paramount consideration.
It is not the only consideration, but it is the paramount consideration, so there is room for consideration of the legitimate wishes and position of the parents, but if the best interests of the child are not served by adopting a particular position of a parent, then that position would usually not be adopted.
Section 60CC(2) states the primary considerations – the benefit to the child of a meaningful relationship with both parents and the need to protect the child from being subject to or exposed to abuse, neglect or family violence. Making those considerations the primary ones is in keeping with the objects and principles of the Act stated in s.60B, so the objects and principles provide the environment for decision-making.
The Act then sets out the additional considerations at s.60CC(3), which includes the age and maturity of the child, views of the child, how parents have cooperated with each other, child support issues if relevant, distance apart, capacity to parent, attitudes to the responsibilities of being a parent, family violence or any relevant matter.
The presumption of equal shared parental responsibility is to be decided pursuant to s.61DA of the Act and if such an order is made, then the living arrangements under s.65DAA of the Act must be considered.
Initially the father was represented, but when the hearing resumed on 15 March 2023 he was self-represented.
BACKGROUND
The father was born in 1984 and is aged 38.
The mother was born in 1981 and is aged 41.
The parties had a relationship between 2012 and Boxing Day 2015.
The child was born in 2014.
She is aged 8.
She is in grade three.
The father is a community worker and can work shifts, at all hours, when clients require assistance.
Such is given by a telephone service, so he conducts much of his work from home, which of course means that he is available for the child when she is not at school and when he is not working.
He is not in a relationship.
The father has a son from a previous relationship named X, born in 2006.
He is aged 16.
He lives with the father in a shared arrangement with X’s mother.
X has also been diagnosed with Autistic Spectrum Disorder.
On the father’s evidence he is in grade 10, and catches the bus to and from school without the father having to transport him. In terms of this hearing, the decision did not turn on the child’s relationship with X.
The mother is a professional.
She worked for B Company, then ran her own business, and has now returned to B Company, two days a week.
She is at home for the majority of the working week and is available for the child when she is not working, keeping in mind that she has trouble getting the child to school.
She is not in a relationship.
Although final consent orders were made on 10 February 2020 the matter returned to court on the father’s application filed 4 March 2021 for the child to live with him until the mother was able to get the child to school successfully.
The mother’s response then filed 20 April 2021 sought sole parental responsibility in relation to medical, schooling and religious decisions and further sought that the child be enrolled in C School. She also sought then to reduce the child’s time with the father to alternate weekends.
On 4 March 2022 the mother then filed a further application in a proceeding seeking that the child attend C School.
By that stage the parental dispute exploded, which is probably the best way to describe it, over schooling, the father seeking to maintain the child at a private school, the mother seeking to send the child to C school, with claims and denials that she had reduced her income.
Not apparent then were the deeper issues impacting on the child – the refusal or inability of the parties to take a combined approach on money issues, the child’s psychological issues and consequently the developing problem of the child beginning to miss school, such failure being that her best interest was not being addressed because of the untrusting relationship between the parents – whether any changes were deliberate or not.
The immediate situation seemed to be resolved then by an order for the child to attend C School, near to the mother’s residence.
However, the case developed its focus on the ability of the mother to get the child to school, taking into account the nature of the relationship the child has with each parent, the age and views of the child, issues affecting the child, the capacity of the parents to provide all that is necessary for the child (intellectually, emotionally and materially) and the responsibility of the parents in being parents.
I will address the schooling issue first.
This is a factual issue.
I have stated above as a fact that the child misses school and that the mother cannot get her to school regularly.
The finding is based on the father’s affidavit filed 2 November 2022, not effectively challenged by the mother, his figures coming from school records.
He stated at paragraph 55, of grade one school attendance:
[X] was absent 64% of Grade One. That is, [X] was required to attend school 176 days but she only attended 63 days of school. Of those 176 school days:
a.[X] was in [Ms Pierce]’s care for 125 days. In an entire school year, [Ms Pierce] took [X] to school 14 days, and she was absent 111 days.
b.[X] was in my care for 51 days. I took [X] to school 49 days and she was absent 2 days as she was genuinely unwell.
He stated at paragraph 73, of grade two school attendance:
As at 17 October 2022, [X] had missed 62% of Grade Two. That is, [X] was required to attend school 118 days but she has only attended 45 days of school. Of those 118 school days:
a.[X] was in [Ms Pierce]’s care for 82 days. [Ms Pierce] has taken [X] to school (successfully to complete a day’s schooling) on just 14 days and has been absent 68 days.
b.[X] was in my care for 36 days. I took [X] to school 31 days and she was absent 5 days.
I should state that the mother did not necessarily accept the figures, but did not give her calculations in response to the father’s figures, not denying the general account that the child had missed a lot of school. She did say that in the last six months, when in her care, the child successfully stayed at school for two days.
Late material as to attendance figures she tried to file at trial was rejected, because it should have been filed on time and the facts-in-issue, that she cannot get the child to school daily, or keep her there, did not change.
And it is not simply that the child does not attend school, there is high drama in getting her to school in the mother’s care when she goes.
Evidence emerged that the maternal grandmother takes the child to school from the mother’s residence on a Monday and Tuesday and waits outside, and the child then, often, leaves the class room or other areas of the school, goes to the grandmother, and returns home.
There was evidence that there was a tortuous process in getting the child dressed and to school from the mother’s household, the mother’s case being that she resists going to school when in her care - the father’s case being that the mother is not or cannot learn strategies to deal with such resistance.
Both parents accept that the child gets to school when in the father’s care.
Faced with the high probability that the court would make a finding that she cannot get the child to school, and that there may be a real possibility that a change of living arrangements may be ordered, the mother’s case turned to the psychological condition of the child and how damaging a change of residence would be.
The explanation relied upon by the mother is a diagnosis of Autism Spectrum Disorder (“ASD”) and an anxiety disorder.
This position was put forward to the parents by Mr D, a clinical psychologist.
He conducts a clinical practice as well as being an adjunct professor at E University.
The child was aged 5 years when she was assessed pursuant to the Diagnostic and Statistical Manual of Mental Disorders V (“the DSM”), the accepted text relied on by the medical profession, as meeting a provisional diagnosis for ASD.
The diagnosis was confirmed a year later, in 2021.
In a written report dated 28 February 2022, annexed to the affidavit of professor Mr D filed 2 November 2022, he stated:
[X] has a very complex profile of abilities and difficulties that includes high levels of anxiety, sensory sensitivity, social difficulties and the need for support and understanding from her teacher, peers and the school administration.
As to anxiety, he stated:
I am very concerned with regard to [X]’s level of anxiety and recommend an assessment and therapy from a clinical psychologist using Cognitive Behaviour Therapy to reduce [X]’s anxiety levels. I recognise there can be difficulties in accessing the expertise in this area bit I strongly recommend psychological treatment for her anxiety.
I also recommend that her occupational therapist writes a report on [X]’s sensory profile for her class teacher so the teacher can accommodate her sensory sensitivity in the classroom.
Steps have been taken to obtain assistance for the child – she is seeing a clinical psychologist for ASD, a paediatrician, a clinical psychologist for anxiety, an occupational therapist and a physiotherapist.
The mother’s case is that the anxiety is so severe, or entrenched, that she fears for the mother’s life when away from her. There is evidence of that.
From his answers, I got the sense that the father did not accept the level of anxiety as described by the mother because he believed that she may be causing such issues in the child, however I was not satisfied that the mother had proven that the father rejected all interventions to assist the child.
The mother’s case relies on any opposition by the father to the diagnosis made by professor Mr D.
In submissions I was taken to the professor’s statement that the father uniformly indicated that he did not observe any issues about the child’s development and anxiety as observed by the mother, and he adopted a position that the assessment process may have been in breach of the court orders.
Professor Mr D stated that “we were unable to assess X’s functioning from the father’s perspective”.
The mother relied on claims that the father’s attitude to the child’s medical needs have been problematic in the past, and gives an example of him taking her to the dentist and failing to inform her of the outcome, that he refuses to set up a separate email account for medical professionals to give him information, that he sought a different optometrist than the one the mother organised and that he withheld his consent for a year after the mother’s application to access NDIS support for the child.
The court was asked to make a finding that this type of evidence would allow for a finding that the father has failed to properly engage with professionals treating the child.
It was then put that he did not have detailed knowledge of the child’s medical and allied health carers when he could not tell the court the surname of Dr F, a clinical psychologist who has treated the child since 2 March 2022.
It was also put that Dr F was treating the child ‘s anxiety about leaving the mother and going to school, yet the father still made an application to change living arrangements based on her anxiety – a shortcoming in the father’s exercise of parental responsibility.
And he was finally attacked because he stated he would not necessarily see the need to get advice from Dr F if there was a change of living arrangements, while accepting that such would be difficult for the child, because he felt confident he would be able to support her during such change.
Hearing such evidence, it would be easy to downplay the importance of the role of the father in the child’s life due to his apparent ambivalence.
But here the professional evidence of the child expert Mr G, who initially recommended a change of residence and did not retreat from that position and also clarified the role of these issues in the child’s life and the role of the parents in her life, is relevant.
It is also a relevant fact to be kept in mind that the mother suffers anxiety and is receiving treatment, however, she produced little helpful evidence of what her anxiety entails or her prognosis and how it relates to the child’s position, a credible question in my view.
Without such particularised evidence-in-chief, Mr G, in his report dated 12 January 2022, revealed further concerns for the court, when he said, unchallenged, that “X does not sleep in her own bed when she is in the mother’s care but rather they sleep together.”
The mother was asked in cross-examination whether she and the child still slept in the same bed together. The mother said “only when she’s sick or if she has had a nightmare”.
Given that such answer was an admission that the child on occasion sleeps with her, although not an admission that she does so regularly, she was not then asked how often such sleeping together occurs, or how often she judges that the child has nightmares or the number of days in a month that such occurs in the mother’s care. Quite properly she was not asked further questions because she had not given particularised evidence-in-chief about this important issue, and cross-examination was not the appropriate vehicle for her to give new evidence.
I would have some doubt about the full extent of the arrangements and have concerns that such may develop into a co-sleeping arrangement, given the number of days the child misses school and the mother’s case that she is very anxious, even to the extent she fears the mother may die.
On so many levels, these are factors and considerations of capacity to parent, on the father’s case as to whether he will ensure the child gets the psychological support the court heard evidence of, and on the mother’s part, of her capacity to parent and to provide emotionally and intellectually for the child, by ensuring she gets to school and remains at school as well as to questions as to her ability to be a responsible parent.
Some of the actual facts cannot be known as to what occurs in the mother’s household, but helpful cross-examination went to the difficulty both parents saw for the child if a decision was made to change living arrangements.
The mother was asked in cross-examination whether the child loved spending time with the father and if the child would suffer if time with the father was cut, to which she said:
I wouldn’t say loves spending time with him… [X] has said to me that she would like to see her Dad every second weekend for a day. She does not want to have sleepovers. She has told me that she feels he spends too much time at work or with [X] and she feels very lonely at his house, which is why she has made friends with [an object] and she telephones me while she’s at his house. I would like her to have more – I would like her to have a better relationship with her father than that and I would like her to have more time with her father than that. However, the motivation behind my request with regard to the decrease of hours with her father was simply that it might be more stable that [X] was with me during the week and then with her father on the weekend and I – I thought that maybe that stability might assist [X] with regard to routine.
In my view the mother downplayed the father’s role in the child’s life – a position not accepted by Mr G.
The father said a change would be challenging, and said he meant that the child will find it difficult and will be upset by a change. He gave the following answers to pertinent questions:
“It will be challenging”. You say it won’t be traumatic. What do you mean by “challenging”?---I mean she will be upset by that, but I don’t expect she’s going to be crying in bed, unable to function. I don’t expect that she will be inconsolable when she comes to our house.
And that is because you have had her for up to seven days at a time, and you say you haven’t experienced her in an inconsolable state, crying in bed?---That’s right.
Do you – and because of that, you say a complete change of residence will not result in such inconsolability?---That’s right.
Do you believe that she has anxieties that the mother may die?---Yes.
Does that worry you?---Yes. I think that’s too much responsibility for a little girl to have and be thinking about. She should be worried about her friends and colouring in and those – you know, that’s far beyond what is normal for a small person to be worrying bout.
Do you think that is an extraordinary position for the child to be in?---Yes, but when I think functionally, she still comes to our house – you know, regular changeovers, and is happy to come. She’s happy when she spends time at our house. I acknowledge that she has those worries, but it’s – she’s not bereft at the door, you know, checking with me, “Is Mum dead yet? Do we need to go to hospital?” Like, she – is – appear in her mind as thoughts and things that she does worry about, which I think are unusual and a symptom of anxiety, but with support, she is able to sort of manage them, and – you know, particularly over the holidays and even weekends when we spend together. She comes. She says she will miss mum on the first day, and by Saturday afternoon, Sunday, like – you know, and even over school holidays she will go days without asking about her mum or wanting to call, things like that.
These were considered answers addressing what occurs now and what the father expects if I make the orders he seeks, with no challenge to his veracity. Mr G was not convinced that a change of residence would be so detrimental that such should not occur.
Asked in cross-examination whether the child would be devastated if she were to be removed from her mother’s care. Mr G said:
I don’t think I would say devastated. I mean, we’re talking about a change in the amount of time she spends with the mother compared to her father. I think that she would have reaction and that probably would be quite an emotional reaction, but we’re talking about her going to a figure that doesn’t offer her emotional support and structure as well. So I wouldn’t use the word “devastated”, but I agree that there would be an adjustment for her.
The mother’s counsel put to Mr G that he had regard to who was best placed to get the child to school when making his assessment, in the sense that such was his only consideration. In response Mr G said:
I don’t think it’s as simple as just getting her to school. I think that the issue, really, in terms of her emotional development, is that, up until this point in time, she has been stilted in her social development and her educational participation, that the only friends that she really has are the friends that she has formed in the time that she goes to school from her father’s care, that she appears to have a very enjoyable and happy experience when she is at school – makes good friends, gets on well, goes to class, and that’s in the absence of either parent – that she talks happily about that, that the routine at her father’s place is not an ordeal – it seems to me. And – and I’ve been over this with the parties a number of times: that, in her mother’s home, the process of getting her to – to school is an emotional ordeal for her – and – and for the mother, I think. And it’s something that they haven’t been able to change or resolve over a significant length of time. Whereas there doesn’t seem, that I could find, to be any emotional consequences for her in the care of her father. And the routine at her father’s home, in my – in my assessment, is more or less conflict-free. And she has some independent there too. She’s a child that – and she’s going to be nine. So adolescence isn’t far around the corner, and there needs to be some way for this child to differentiate herself from her parents so she can form relations with school, friends and education that’s going to assist her going forward. For me, that’s a significant issue. I’m not saying that the other issues about her ASD and her medical appointments and those sorts of areas aren’t of importance, but she does have access to a lot of those resources both at school and through her mother, and that’s – I don’t think there has been any lack of involvement in that sense, but there are parts of her life which have not changed, and if it was possible for her to cross that bridge, it would be, in my view, ground breaking change for her to form good relationships and feel that she has some independence.
This appeared to me to be a very careful assessment of the child’s needs in terms of the considerations stated in the Family Law Act. The mother also identified the father’s scepticism of assessments made of the child as a reason why there should not be a change of arrangements.
What I was looking for was evidence confirming that there was such a difference between the views of the parents that the child’s best interest in relation to health and allied health care would be compromised.
The father said he would maintain the child’s connection with her paediatrician, Dr H, and it was this statement which prevented the making of a finding that he had properly failed to engage with medical professionals.
He said he took the child to Dr H on the advice of professor Mr D.
He also stated that professor Mr D advised the parents to speak to Dr H about the prospect of medication for the child or about any other issues relevant for supporting her anxiety.
The father accepted that he was sceptical about the child’s anxiety, but said he would take advice from Dr H and make a decision. That he would consider advice before making a decision cannot be held to be a criticism of him, because that is exactly what parents do – they take professional advice when needed and consider it.
He also accepted that it would be important for both parents to make the decision about the child taking anti-anxiety medication together.
It is apparent that the father has suspicions as to the information given to medical specialists by the mother.
Her evidence of her own anxieties may be partly the cause of that, as well as evidence that the child gets so anxious that she fears the mother’s death.
Such anxiety appears to be a serious psychological issue for the child, and one, in her present circumstances, is not being effectively addressed by the parents in their current state of dispute.
Nor could it be.
However, there is some level of cooperation.
Although he could not remember her surname, the father has seen Dr F, meeting her twice, once in July or August 2022 and again in September 2022.
She is the child’s clinical psychologist and has been seeing the child since March 2022.
The mother arranged this.
Although the father had not seen her before he filed his application for a change of living arrangements, I cannot make a finding that he saw her merely because he filed the application because it seems the evidence of the child’s difficulties in getting to school and her anxieties in the mother’s household were building and simply came to a head.
Importantly, the father stated he would keep the consultations up, despite stating he had not sought her opinion as to the impact on the child of separation from the mother. In explanation of this he said “I wouldn’t see the need to get her advice about that. I think it’s plain to see that would be difficult for X [sic]. I feel very confident in being able to support X [sic] in managing that.”
While the mother seized on this type of statement as indicating a lack of understanding on the father’s part, the rhetorical question would have to arise as to why such indicates a lack of understanding, when the father has stated the child will have a difficult time and Mr G gave evidence that a change of residence, or living arrangements, was not an event where the child was going to someone she does not know.
Although professor Mr D had grave doubts about the ability of the child to adjust to a change of residence, Mr G also stated, in answer to a question from the father:
Well, in one sense, she – she’s in a well-known pattern between both of you. So I think the initial – any initial change that might occur for her would be more difficult. And there would be some difficulties with adjustment, I would imagine. And there is a risk that it – it won’t work. There is a risk that she – once she gets to your place, she just does the same as what she does at her mother’s place. I think the risk of that is minimal, but it – it – it’s still a risk. So it’s not – it wouldn’t be an easy transition for anyone, particularly for [X] [sic], but there are factors there that support her and she knows what they are. So, in that sense, I would be relatively confident she could do so. The other thing is this is not a suggestion as a permanent arrangement. I mean, I think that if the problem can be resolved, and she can form those links and start attending regularly, then the – the status of care could change so that she has a more equitable arrangement between the two of you. But I think this hurdle for her needs to be addressed as soon as possible, because it has been going on for too long.
The evidence I have considered then clearly indicates that both parents have some different views as to the child’s diagnosis and the extent of her anxiety, the father returning to his experience that she simply does not show such anxiety when with him.
But there is some meeting of their minds – they accept she is a child having troubles.
Left alone to make decisions, the mother does not impress the court with an ability to assist the child to get over or deal with anxieties – she has had the child co-share her bed and that is still occurring when the child has nightmares as the mother stated, with no description of the mother’s idea of a nightmare, she ensures the child has an escape route from school with the grandmother standing by to transport her home and she has discussed adult issues with the child.
I became aware that when X told the family report writer that her parents do not get on, she said “Mummy doesn’t like Dad and Daddy doesn’t like Mummy” (paragraph 103, family report dated 12 January 2022).
It is recorded at paragraph 107 in Mr G’s report dated 12 January 2022 that the child said “Daddy is trying to convince the court that he can get me to school easily with no problem – that is not true – I have problems.”
Put to the mother in cross-examination was the proposition that the child’s comment seemed to suggest the child has a knowledge of the court proceedings.
The mother said in reply:
I accept that I made an error and I said to [X] [sic] Dad and I both love you very much and Dad would like to convince the court to spend more time with you, and I would like to convince the court that I would like to spend more time with because we both want you all the time. But unfortunately, we’re going to have to work out how we can spend time with you, and I used that word “convince” and I said that. I – that’s what I said to her, and I acknowledge that it was an error and I should not have said that.
Left alone to make decisions, the father does not impress the court that he could separate the child’s actual psychological needs from views that the mother has inflated those needs, however that is a separate issue from rejecting all evidence of the child’s troubles – which he does not.
The parents need to talk, which they can do, consider each other’s opinion, which they can do, and seek advice from the same health and allied health practitioners.
Professor Mr D’s opinion that the child may be masking her behaviour or feelings does not impinge on the need to make these important health care decisions. If the child is masking her feelings, then that underlines the need for parental cooperation.
But here I return to the evidence of Mr G, who said:
Basically, my main concern is that she is not engaging with the school or – in terms of making social connections in a normal fashion, which will help her to – in the end, will help her to see herself as part of a social group separate to her parents, to have some reality testing about herself in a social situation and in school, and begin to think of herself as independent of her parents in a way that’s not developmentally – not development – in a way that doesn’t – that lets her understand what the possibilities are for her and how she can become a member of a social group and see herself as someone separate. That’s part of the challenges in terms of developing identity. I think, in terms of her reliance on the parental relationship – I don’t think she really sees much conflict between the two of you. I certainly didn’t get any sense from her that she perceives your relationship as highly conflicted. And I think if – but – if that was the case, that would be an extra risk – risk factor for her. I don’t see that of itself as being much of an issue or consequence. I think there have been times that the two of you have attempted to work together and collaborate and times which you haven’t. And her – her expression of her attachment verbally is equitable. She – and she interacts with you both in an equitable fashion. She seems to have the same level of affection, at least from what I’ve seen, for each of you. So there are some protective factors there for her, but there are the risk factors that I was – I’ve spoken about earlier.
The weighing of the evidence of the medical specialist and court child expert is to be assessed carefully.
The court has to exercise a real discretion here, to choose between alternatives of leaving the child in the mother’s care or transferring her daily care and control to the father’s household – commonly termed a change of residence, but as I have stated in this case, a change of arrangements.
In some cases, evidence is so clear that a change of residence is necessary and little choice is left to the court.
In other cases, evidence needs to be identified and weighed and then the decision made.
The evidence here, as always, is subject to being tested under the key provision of the law, that provision being the best interest of the child being the paramount consideration.
The salient evidence affecting the mother’s case is that the child is not going to school, or when she does, will not stay at school and her schooling future, on those facts, is severely hindered. The child has ASD and anxiety, for which she receives NDIS support, and those psychological factors alone have not been shown to prevent her going to and staying at school when with the father. The evidence is that the child may not develop a sense of independence unless the cycle she is in can be broken. The evidence is that she may have a strong reaction to a change of care arrangements, but that a change is not to a stranger, it is to her father whom she loves and it is not a ceasing of time with the mother. It is a change of time with the mother.
The salient evidence in the father’s case is that he can get her to school and he does not see the same behaviours as recorded by the mother in parting company to go to school. In exercising parental capacity and parental responsibility, he seeks a change of care arrangements for the purpose of ensuring the child goes to school and develops as an independent person, independent of the parents and not emotionally dependent on the mother.
The other salient feature of the matter, one not tested as much as it could be and I suspect the father becoming self-represented was the cause of that, was assessment of the mother’s anxious disposition, which she admitted and is receiving some support for. The evidence did not go as far as determining a co-dependency on the child, however, to dismiss that as a possibility, and I do not say a probability, would be to ignore the best interest component of the consideration for the child.
In changing arrangements, a rhetorical question is asked – could the decision be wrong, could the child’s reaction be damaging to her now and in the future? This is the question the court always considers very closely, and the answer lies in the weighing of the evidence. While not dismissing professor Mr D’s evidence, it is the evidence of Mr G as the expert, the witness who has applied the tenants of law to the information he gained from the affidavit material and his interviews, which is persuasive.
On the evidence available, a change of living arrangements could not be ruled out, the evidence of Mr G being persuasive.
However, the issue of parental responsibility must be considered.
The father chopped and changed his position, finally arriving at a point where he sought an order for equal shared parental responsibility, but with a particularised component about consulting on medical and schooling issues.
If he means that medical issues would be informed by the parties attending on specialists so that they both have the same information, then there is no reason why such an order could not be made.
In my view, he means exactly what he seeks, that the parties exercise parental responsibility equally and the must mean that they actually consult and discuss issues.
I will point out that an exercise of shared parental responsibility equally does not mean, and cannot mean, that the parties will be of one mind at the time a decision is made.
Even when families are intact disagreements occur but parents still manage to make decisions.
However this mandatory consideration appears to be complicated by the mother’s application to exercise sole parental responsibility for both schooling and medical issues.
As to schooling, the mother made a submission that the father’s evidence on schooling and his decision-making would be questionable – but I do not accept that. The fact is, the mother has changed her working arrangements, and while that does not mean she reduced her income for the purpose of changing the child’s schooling, that has been one of the results. In any case, the parties agreed to leave the child at C School for the rest of her primary schooling – so I do not accept that the father’s decision-making is so flawed that the mother ought to have the sole say on schooling. Such an order would be bound to cause further problems and may even see the matter returned to court.
In my view, that she wants control over schooling is not supported by cogent evidence as to why the father should be denied a say.
The schooling issue initially seemed to turn on affordability of the private school – but became a question on her proven inability to get the child to school even when expenses were lessoned after the order to send the child to a state school.
That position, on the evidence, leads to the conclusion that she has not considered the risk to the child of not attending school, that left in her care, the child will have constant difficulties in getting to school, that such difficulties will escalate and that such represents an unacceptable risk for the child.
The mother wants to also isolate decisions to herself for the child’s psychological health.
On that issue, the father did not completely reject the position as to the child’s diagnosis.
He is in the position where he, as stated above, has given evidence that he will take advice.
What seems to be the problem is that he questions the position as stated by the mother, that she cares for the child, but her efforts in obtaining a great deal of medical and allied health care interventions, have singularly failed to address the non-attendance at school or the anxious disposition.
Here I return to the position of Mr G, that a change is needed to avoid, if possible, an even greater risk for the child’s development in not attending school, not attending studies and missing all of that extremely important social contact school provides.
He said:
I think that the issue, really, in terms of her emotional development, is that, up until this point in time, she has been stilted in her social development and her educational participation, that the only friends that she really has are the friends that she has formed in the time that she goes to school from her father’s care, that she appears to have a very enjoyable and happy experience when she is at school – makes good friends, gets on well, goes to class, and that’s in the absence of either parent – that she talks happily about that, that the routine at her father’s place is not an ordeal – it seems to me. And – and I’ve been over this with the parties a number of times: that, in her mother’s home, the process of getting her to – to school is an emotional ordeal for her – and – and for the mother, I think. And it’s something that they haven’t been able to change or resolve over a significant length of time. Whereas there doesn’t seem, that I could find, to be any emotional consequences for her in the care of her father. And the routine at her father’s home, in my – in my assessment, is more or less conflict-free. And she has some independent there too. She’s a child that – and she’s going to be nine. So adolescence isn’t far around the corner, and there needs to be some way for this child to differentiate herself from her parents so she can form relations with school, friends and education that’s going to assist her going forward. For me, that’s a significant issue. I’m not saying that the other issues about her ASD and her medical appointments and those sorts of areas aren’t of importance, but she does have access to a lot of those resources both at school and through her mother, and that’s – I don’t think there has been any lack of involvement in that sense, but there are parts of her life which have not changed, and if it was possible for her to cross that bridge, it would be, in my view, ground breaking change for her to form good relationships and feel that she has some independence.
That is not necessarily at odds with professor Mr D’s position.
This is the relevant and striking factor to take into account.
In my view, an order for equal shared parental responsibility would be a best interest decision for the child, and I intend making one, also noting the father’s changed position in submissions seeking such an order.
In making such an order the living arrangements have to be considered, from equal shared care, through to substantial and significant time or any other order in the child’s best interest.
If I do not make a change to the child’s living arrangements, which on Mr G’s evidence is not necessarily a change to her parental relationships, that will place the child in the position of nothing changing.
That would present as an unacceptable risk, because there is no evidence that the mother can successfully overcome her inability to get the child to school. To put that another way, it is more probable than not that the mother will not overcome her own difficulties in getting the child to school.
If I make the change, there may be such a reaction that the child is psychologically harmed, but on Mr G’s evidence, that may not occur.
I could not make an order for equal time, although not sought by either party, because unfortunately the evidence leads inevitably to the view that the child will remain in the same position she is in now, that she will not get to school when with the mother.
While the mother wants the father to pick the child up from her house to attend school, that alone will be insufficient safeguard, because as the child gets older, unless she suddenly begins going to school voluntarily, would probably see her conditions get worse.
I have not referred to all of the mother’s lengthy and detailed written submissions but I will say that their sole purpose was to persuade that a change of residence would not be a best interest decision. Many submissions repeated the evidence of what the child may need by way of health care involvement – but they are the medical questions open to the parents to consider, and I am mindful that Mr G expressed the view, unchallenged, that the parents may choose to change arrangements if the child requires such change. I interpreted that as a view that they have the capacity to cooperate, which would include assistance when and if necessary, provided the child was in the care of the father, otherwise nothing seems to be assisting the child.
On that basis, it is the change of residence which must occur as being the best interest decision for the child, also keeping in mind that change for her will be constant as she grows, and that the parents, on settling into a regime where the child goes to school, may come to view the living arrangement as a circumstance they will control.
I have combined those orders not contested and made on 10 February 2020 with the new orders.
I certify that the preceding one hundred and sixty-five (165) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coates. Associate:
Dated: 4 July 2023
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