ALDEN & BARDWELL
[2010] FMCAfam 824
•3 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALDEN & BARDWELL | [2010] FMCAfam 824 |
| FAMILY LAW – Children – parenting orders – application to vary parenting orders. EVIDENCE – Expert evidence – admissibility – where reports not in proper form – expert’s reports annexed to affidavit by the applicant. |
| Family Law Act 1975, s.60CA |
| SZNCR v Minister for Immigration & Anor [2009] FMCA 338 In the Marriage of Wardle [1990] FamCA 52; (1990) FLC 92-162 |
| Applicant: | MS ALDEN |
| Respondent: | MR BARDWELL |
| File Number: | SYC 2945 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 July 2010 |
| Date of Last Submission: | 30 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | McLachlan Thorpe Partners |
| Counsel for the Respondent: | Mr Maurice |
| Solicitors for the Respondent: | Pigott Stinson |
ORDERS UNTIL FURTHER ORDER
That Order 2 made on 24 September 2009 is suspended.
That the child [X] born [in] 2006 spend time with the Father:
(a)Each Thursday between the hours of 3:00pm and 7:00pm; and
(b)Each Sunday between the hours of 10:00am and 4:00pm.
That all changeovers regarding time spent be implemented by the parties meeting at the McDonald’s Family Restaurant in [address omitted] at the commencement and conclusion of each time period.
AND THE COURT NOTES that the Father at all times maintains the view that it is not in the child’s best interests for him to spend less time with the Father than as provided in the orders made on 24 September 2009.
IT IS NOTED that publication of this judgment under the pseudonym Alden & Bardwell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Sydney |
SYC 2945 of 2009
| MS ALDEN |
Applicant
And
| MR BARDWELL |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Mother of a little boy named [X] to suspend an order made by consent in the Family Court on 24th September last year. The order sought to be suspended is Order 2, which provides for the Father to spend time with [X] on two occasions each fortnight, including some overnight time.
It is the Mother’s case that the child has been “displaying increasing behavioural problems immediately prior to his scheduled visits”[1] with the Father in accordance with the orders. She seeks orders that the child only spend time with the Father during the day, on Thursdays and Saturdays. She also asks that the changeover point be at [omitted].
[1] Affidavit of Ms Alden sworn 16.7.2010 at paragraph [30]
The Father opposes those orders. His application is that the child spends time with him according to the scheme set out in the consent orders made on 24th September. Alternatively, if the Court were to decide that the operation of the orders ought to be suspended on an interim basis, he would seek orders that the child spend time with him:
a)Each Thursday between the hours of 3:00pm and 7:00pm; and
b)Each Sunday between the hours of 9:00am and 5:00pm.
He also seeks an order that the place for changeover should be outside the K-mart Store at the [omitted] Shopping Centre, which he proposes as a neutral location. His counsel, Mr Maurice, has made it clear that the Father at all times maintains his view that it is not in the child’s best interests for the child to spend less time with him than as provided in the consent orders.
Background
The parties were married [in] 2000. There is one child of the marriage, [X], who was born [in] 2006. He is four and a half years old. He usually lives with the Mother.
The Mother was pregnant with [X] when the parties separated in November 2005. The parties were divorced on 25th January 2006.
Both the Mother and the Father have formed new relationships. The Father has remarried and has a daughter, [Y], who was born [in] 2009. The Mother is engaged to be married.
The Father commenced proceedings in the Family Court in May 2009, seeking parenting orders in relation to [X]. As part of those proceedings, the parties attended a meeting with a Family Consultant, Ms B.
In the Child Responsive Program Memorandum dated 17 September 2009, Ms B noted that the child had at times been “distressed and resistant to leaving his mother to go with his father”.[2] Ms B noted that the child, who was to spend an overnight stay with the Father, started saying about an hour beforehand that he did not want to go with him. Despite reassurance by both parents, the child kept repeating that he did not want to go, and threw himself on his mother’s lap and hit her. Eventually, he was consoled and left with his father. In her summary, Ms B noted:
[X] has some separation anxiety when leaving his mother, and while some of this is developmentally normal, he does have a very intense reaction and also appears to become angry with his parents for requiring him to separate from his mother and go with his father…
…It is difficult to establish the cause of [X]’s, at times, intense resistance to leaving his mother.[3]
[2] Affidavit of Ms Alden 16.7.2010 Annexure “A” page 1
[3] Affidavit of Ms Alden Annexure “A” at page 3
On 24th September 2009 the parties entered into consent orders. The orders provide that the child is to live with the Mother and spend time with the Father, as set out in detail in Order 2. That Order provides, at 2.1, for the arrangements intended to apply until the child starts school next year:
(a) Week 1: From 5.00 pm Thursday until 5.00 pm Saturday and that the mother or her nominee deliver [X] to the father’s residence at the commencement of such periods and that the father or his nominee return [X] to the mother’s residence at the conclusion of such periods;
(b) Week 2: From 8.30 am on Saturday until 5.30 pm on Sunday and that the father or his nominee collect [X] from the mother’s residence at the commencement of such periods and that the mother or her nominee collect [X] from the father’s residence at the conclusion of such periods.
The Mother deposes that since September 2009 the child has been displaying increasing resistance to going to his father for the time provided by the orders, although she states that she encourages him to go. She claims that this behaviour includes:
a)Hiding in a cupboard, in the bathtub, outside her home and in his big toy box, and trying to hide in a neighbour’s house;
b)Encouraging family members, such as his grandfather, to take him away with them when the Father is due to collect him;
c)Wringing his hands, hitting his head against the car door (once), vomiting (twice), blinking his eyes, repeating the words “I don’t want to go to Daddy’s”, punching himself on the head, hitting his mother, and screaming uncontrollably; and
d)Threatening to run onto the road if his mother makes him go to his father’s house.[4]
[4] Affidavit of Ms Alden 16.7.2010 AT [30]
The Mother also deposed that on one occasion the child became so distraught that he bit her arm when she was carrying him to the Father, drawing blood and leaving a scar, whilst he was hitting her on the head.[5]
[5] Ibid at [31]
Evidence
The Mother relies on reports by Dr K, a general medical practitioner who has treated the child, dated 1 July 2010 and Ms C, a clinical psychologist, dated 15th July 2010 whom the Mother has consulted.
Both of those reports are annexed to the Mother’s affidavit of 16th July 2010. This appears to have been considered suitable for the purposes of an interim hearing, but the reports would be the subject of objections if it were sought to present them in a final hearing. They are not in proper form. Expert evidence, unless it is admitted by consent, should be on affidavit, deposed to by the author of the report (SZNCR v Minister for Immigration & Anor[6] at [27]).
[6] [2009] FMCA 338
That said, Dr K describing how she advised both parents that she was very concerned about the child’s behaviour and referred him to Ms C, as a child psychologist. Dr K stated:
I further advised the father that I did not believe these instances should be classed as tantrums.
I recommend that [X]’s overnight times with his father be suspended as in my opinion overnight times are detrimental to his mental health and development, and due to [X]’s severe actions, he requires stability.[7]
[7] Report of Dr K 1 July 2010 Annexure “C” to mother’s affidavit.
Ms C’s brief report of 15th July 2010 states:
I state that the current Consent Orders are not in [X]’s best interests as it (sic) includes overnight time to which [X] is showing signs of physical distress…
…At this time it is my opinion that [X] requires shorter and more frequent time with his natural father that does not include overnight stays.[8]
[8] Report of Ms C 15 July Annexure “I” to mother’s affidavit
The child was also seen by Dr J, a consultant paediatric physician. The Mother did not rely on his report dated 21st May 2010. Mr Dura of counsel, who appeared for the Mother, told the Court that this document was not available to her at the time.
Dr J considered that [X] did not display symptoms that would lead to a diagnosis of ADHD. Dr J said in his report to Dr K:
I had a long discussion with [Ms Alden] reassuring her that [X] is a well child who merely needs consistent discipline both from his mother, the maternal grandparents and separately from his father when his father has access.
It is important for the family to be consistent in their discipline and management of him and I do not believe at this stage there are any indicators of an underlying neurological or physical disturbance. Whether he will at the age of 6 years be a little overactive and have a short attention span remains to be seen but I would personally not even remotely consider a diagnosis of ADHD unless a child was over 6 years of age.[9]
[9] Report of Dr. J 21st May 2010
Submissions
Counsel for the Mother submits that she supports the child’s relationship with the Father but he is displaying worrying behaviour connected to seeing his father. She is not suggesting that the Father not spend time with the child but should not spend overnight time with him at this stage. Dr K was of the view that the Father acknowledged the child’s behaviour but was lacking in insight. There is a problem with the child’s behaviour that needs to be addressed.
He supported the appointment of an Independent Children’s Lawyer.
Counsel for the Father, Mr Maurice, submitted that the Mother’s actions needed closer examination. She waited to bring this application until the Father had commenced contravention proceedings. The orders were made less than a year ago, after Ms B had commented on the child’s behaviour in the Child Responsive Program Memorandum. He referred the Court to the decision of In the Marriage of Wardle[10].
[10] [1990] FamCA 52; (1990) FLC 92-162
He submitted that the Court should look at the available evidence and ask whether it amounts to something credible and ascertainable. There was nothing related to overnight contact.
Conclusions
Whilst the reports of the child’s behaviour are disturbing, the reports of Dr K and Ms C do not on their face establish a case for a major change to the arrangements. With respect, the letter from Dr J does not take the matter much further, as he seems to have been looking at whether the child may have Attention Deficit Hyperactivity Disorder (ADHD), and the child appears to have some form of separation anxiety.
However, the Mother’s own affidavit evidence, untested though it is, describes some bizarre and extreme behaviour by this child which must cause serious concern.
The application was heard on a Friday afternoon and it was necessary to reserve the decision until today. Noting that the child was due to have overnight time with the Father over the weekend, I decided that this should be suspended until this matter could be decided.
Whilst the evidence before the Court, apart from the Mother’s own affidavit evidence, is not as strong as would be desired, I consider that there is evidence sufficient to establish that this child is showing an extreme reaction to spending time with his father. I am not convinced that there should be no time spent with the Father, but it is possible that a temporary removal of the overnight time spent with the Father may help to alleviate whatever fears this child may hold and may help to break the pattern of very disturbing behaviour.
For that reason, the Court should err on the side of caution and suspend Order 2 made on 24th September 2009. [X] should spend from 3:00pm to 7:00pm on Thursdays and 10:00am to 4:00pm on Sundays with his father.
I am not persuaded that an Independent Children’s Lawyer will assist, due to the child’s young age.
The changeover will take place at a neutral venue, the McDonald’s Restaurant at [omitted].
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 3 August 2010
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