ANDREWS & LEWIS
[2016] FamCA 296
•3 May 2016
FAMILY COURT OF AUSTRALIA
| ANDREWS & LEWIS | [2016] FamCA 296 |
| FAMILY LAW – CHILDREN – where the children are 15 and 12 years old – parental responsibility with respect to education and healthcare issues – how often the youngest child spends time with the father. |
| Family Law Act 1975 (Cth) |
| Goode & Goode (2006) FLC 93-286 SCVG & KLD (2014) FLC 93-582 |
| APPLICANT: | Ms Andrews |
| RESPONDENT: | Mr Lewis |
INDEPENDENTCHILDREN’S LAWYER: | Nicola Davies |
| FILE NUMBER: | LEC | 457 | of | 2011 |
| DATE DELIVERED: | 3 May 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 27 - 28 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Pendergast |
| SOLICITOR FOR THE APPLICANT: | Andersons Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Smith |
| SOLICITOR FOR THE RESPONDENT: | Claire Newton Family Lawyer |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McGregor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
(1)That the mother have sole parental responsibility in respect of all health and medical treatment and education decisions for the child N, save that the Mother shall, prior to making the sole ultimate decision about any such issue:
(a)Use her best endeavour to advise the father in writing of the decision intended to be made;
(b)Seek the father’s written response in relation thereto;
(c)Consider, by reference to the best interests of the child, any such response prior to making any such decision;
(d)Advise the father in writing as soon as reasonably practicable of her ultimate decision.
(2)That the father be restrained and an injunction issue retraining the father from having the children, or either of them, examined or treated or counselled by any health professional, therapist or counsellor, in connection with the children’s health and medical treatment without the written consent of the mother or order of the court first had and obtained.
(3)That the child, N, spend time with the father during school terms each alternate weekend from 6PM on Friday until 6PM Sunday or 6PM Monday if Monday is a public holiday.
(4)It is requested that the Independent Children’s Lawyer explain the effect of this order to N and the effect of the orders made earlier in these proceedings on 3 February 2016 and 27 April 2016 to both N and D and in particular that it is explained to the older child, D, that the father’s subpoena for the production of Dr C’s notes in relation to D was not pressed by the father.
NOTATION
(5)This order should be read in conjunction with the orders made on 3 February 2016 and 27 April 2016.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Andrews & Lewis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: LEC 457 of 2011
| Ms Andrews |
Applicant
And
| Mr Lewis |
Respondent
REASONS FOR JUDGMENT
The parties to this parenting dispute are Ms Andrews (“the mother”) and Mr Lewis (“the father”).
On 3 February 2016 orders were made by consent in relation to holiday time and specific issues.
At the commencement of the hearing a Minute of Order was tendered and a final order was made in those terms by consent relating to the child, D (“the older child”), and in relation to overseas travel for the children.
Hence the issues to be determined at this hearing concern only parental responsibility for the major long term issues of health and education for N (“the younger child”) and the time the younger child spends with the father during school term.
Relevant Background
The mother commenced proceedings by Application filed on 19 November 2013.
The mother and father were married in 1998 having commenced cohabitation in 1992. They separated on 15 March 2009 and were divorced on 15 December 2012. The mother is a legal professional, formerly a health professional, and the father is a health professional.
They have three children together, namely, the adult child M born in1996, D born in 2000 and N born in 2003.
For some time after separation the children spent alternate weeks with the father. That was interrupted in 2011 when N and D told their mother that the father had shown them his penile piercing and that N showered with her father. Those facts are not in dispute. At the time, the father provided an undertaking not to bathe with the children and to ensure they slept in their own beds. His time with them resumed. There was a further interruption to that time in 2013 and for a time the father had supervised time then unsupervised alternate weekends and holidays.
The current arrangements are that the younger child spends alternate weekends and holiday time with her father. The weekend time is from after school Friday to before school on Monday. The mother currently takes the child’s uniform over to the father’s home on Sunday as it is a different one to the Friday uniform. The father has not purchased any uniforms. By agreement the father also sees the child during the week at her extracurricular and sports activities on Monday, Wednesday and Friday, at her sports match on Saturday and speaks to her on the telephone on Tuesday and Thursday. The father is the coach for the younger child’s sports team.
The older child is not currently spending any time with his father and the parties have now consented to orders that the older child’s time with his father will be in accordance with his wishes and that the mother have sole parental responsibility for the child. The adult child continues to see his father in a week about arrangement having had a gap year in 2015 and spent time in Southeast Asia. He has recently started university.
There have been ongoing issues between the parties in relation to time spent, schooling and medical treatment but the parties have on occasions been able to confer, mainly in writing, and reach agreement on some issues.
There have been occasions when they have accepted requests by the other for changes in time spent by the children with each of them.
But there have also been occasions when the mother has acted unilaterally and made decisions about the children’s welfare, in particular, taking them to see a psychiatrist and permitting the older child to engage in distance education.
There have also been occasions when the father has acted unilaterally and made decisions about the younger child’s welfare, in particular, taking her to see a psychologist, doctor and orthodontist.
The parents remain in dispute about what is the most appropriate medical treatment for the younger child who was diagnosed with an anxiety disorder in December 2013 and likely Attention Deficit Hyperactive Disorder (ADHD) in August 2015 by a Dr C who has also prescribed a trial of the medication known as Ritalin. The father does not accept the diagnosis of ADHD and as a result the child is not currently undertaking any treatment. Both children have been regularly consulting with Dr C for well over a year. The father opposes the younger child continuing to consult with Dr C.
In his report dated 16 December 2013 Dr C opined:
My overall medical assessment is that [the child N] is most likely suffering from a generalised anxiety disorder that is being exacerbated by her worry around the disruption to the structure/routine of the current shared custody agreement and the ongoing conflict within her separated parent’s relationship. In my opinion I worry about her prognosis if she does not receive psychological intervention targeted toward managing her anxiety.
In his report of 25 August 2015 Dr C advised the father and mother as follows:
We completed two main tests, the TOVA, which screens for problems with attention, and if evident the likelihood of this being ADHD. We also completed a Connors (completed by the two of you, as well as the classroom teacher), which is a more general assessment for inattention, anxiety, disorders of conduct and learning disorders.
The outcome of the assessment is as follows
1. The Conners report completed by [the mother] was highly suggestive of [the child] having ADHD – inattentive type. Obviously her anxiety was also noted.
2. The Conners report completed by [the father] was also highly suggestive of ADHD – inattentive type. Although the scores were lower than [the mother’s] feedback, they still met clinical threshold for ADHD
3. The Conners report from the teacher was also suggestive of ADHD.
4. The TOVA identify problems with inattention, with the specific result being within the range of individuals with ADHD.
No other major learning disorders were identified. The TOVA results imply that anxiety is not responsible for this problem.
The way to view this is that the testing is not diagnostic in itself, but when combined with my own reviews of [the child], the likelihood of this being an accurate ADHD – inattentive type diagnosis is high.
What I want to check is what the two of you now wish to do? I am happy to meet with you both individually to discuss the next step (i.e. do we consider treatment?)
Consultations with Dr C and the mother and father subsequently occurred and he recommended a trial of the medication Ritalin. The father then proposed a second opinion be obtained from a Dr W, but nothing further happened.
In his report dated 27 November 2015 Dr C advised the father’s solicitor as follows:
I have diagnosed [the child N] as having ADHD – inattentive subtype…
The proposed treatment plan is provided in accordance with evidence-based practice guidelines. I have offered the family a combination of both pharmacological and psychological treatment. Evidence suggests that a combination of the two is the most successful intervention.
I recommended that [the child] be commenced on stimulant medication. There are several options available. I tend to use methylphenidate (Ritalin) as my first line of choice.
Again, I provided these recommendations to both parents. [The father] attended my rooms on 9 October 2015 to discuss the diagnosis and treatment recommendations. His stated preference at the time was to seek a second opinion by a psychologist of his choosing, whom he identified as Dr [W] at [U Services]. I also offered to arrange a second opinion via a child psychiatrist or paediatrician if needed. [the father] felt it best that I not provide any information to [Dr W], so that he was able to make an independent decision. The plan was to have this completed prior to the commencement of the new school year. We were then to meet together and discuss treatment options again, based on [Dr W’s] findings.
My understanding is that this plan of action has not taken place. Instead, the diagnosis seems to no longer be in dispute and [the father] has requested that [the child] undergo what I understand to be “brain mapping’ as an alternative to more usual treatment options. I am not aware of any recognised Level I Evidence to support this treatment, such as meta – analysis.
The mother contends that on Thursday, 12 November 2015 the younger child was on the phone talking to her father. She contends that she observed the child upset and crying and that after the phone call the child told her:
Dad kept saying that Dr [C] doesn’t talk to him and I told dad I know that’s not true. I had to say it several times. He said Dr [C] is harming me and that medication will hurt my mind and my body.
On 28 February 2016. The father sent an email to the Independent Children’s Lawyer stating as follows:
… Although I gave consent for [N] being medicated it was not informed consent because the assessment results were false…
The issue the father has with the diagnosis is that according to the father, the teacher did not say the child’s symptoms were suggestive of ADHD but that rather the teacher was more concerned about the child’s absenteeism and thought further testing may be harmful. Whether or not this is the case I note the information provided by both the mother and the father was suggestive of ADHD according to Dr C and his own observations indicated ADHD to be most likely.
There have been ongoing emails between the parties and between their respective solicitors, but the end result is that the child has not received any treatment.
Recently the father took the younger child to see a new doctor, Dr Q, and as a result of that consultation the father implemented a diet for the child in which he eliminated gluten, dairy and sugar from her diet. He provided no report from the doctor to the mother to justify such a change in her diet. Needless to say if there has been a change in her diet it is only occurring at the father’s place. The father also commenced the child on a number of supplements.
There are various reports and emails from Dr C annexed to the parties’ affidavits and reports from other medical and health professionals and journal articles but no medical or health practitioner was required for cross-examination. No submissions were made in relation to the diagnoses made in relation to the younger child other than a statement from the father’s counsel that the father did not accept the diagnosis of ADHD.
In Ms J’s most recent family report she records, in relation to her interview with the younger child, as follows:
Healthwise she wants her mother to be sole decision maker. She said that Dad makes poor decisions; he takes her to ‘whacky places’. She wants to continue to see Dr [C]. She wants Mum to make all decisions about her schooling.
The process of deciding on a secondary school for the younger child was a saga. The father did not support the child’s attendance at a Catholic high school although she had attended a Catholic primary school. He would not attend interviews at another prospective school at the same time as the mother and declined to attend the interview at the Catholic high school although eventually gave his consent for her attending on condition that the mother paid the fees and agreed to review the matter at the end of her first year. The younger child commenced at V School (the Catholic school) this year.
In a letter from the father’s solicitor to the mother’s solicitor dated 18th of November 2015 it was stated as follows:
Unfortunately, there is an almost complete lack of trust between the parties in this matter and my client requires a third person to be present at any future situations where your client and my client are likely to be in the same room.
It is also apparent from the evidence before me that Dr C and the younger child’s school have been drawn into the conflict between the parents on occasions.
The mother contends that the child’s preference for time with her father is from 6.00 pm Friday to 6.00 pm Sunday. This accords with the information provided by Ms J. The parties have each proposed however that the time start from the commencement of school Friday, so that if the child is sick or has appointments on the Friday the father will care for her or take her to the appointments. While the father had also proposed that time end on Sunday at 6.00 pm up to the time of submissions he then sought and was granted leave to further amend his orders sought by extending the end of time to Monday morning. Up to the time submissions were made the only difference in the parent’s proposals was that the father proposed the addition of some words that would mean that the child could spend extended time with the father if she chose to do so and the mother opposed the additional words on the basis it placed too much pressure on the child.
Material relied on
The mother relied upon the following material:
a)Amended Case information filed 22 April 2016;
b)Amended Initiating Application filed 2 March 2016 (as amended by orders sought in Amended Case information and as further amended on 28 April 2016);
c)Affidavit by the mother filed 16 March 2016;
d)Affidavit by the mother filed 19 April 2016 (only paragraphs 1 – 56, 64 – 83, 96, 101 - 107);
e)Outline Argument filed 26 April 2016 (to extent now relevant)
The father relied upon the following material:
a)Amended Case information filed 21 April 2016;
b)Summary of Argument filed 21 April 2016;
c)Further Amended Response filed 4 March 2016 (as further amended on 27 April 2016 and again on 28 April 2016)
d)Affidavit by the father filed 2 June 2015;
e)Affidavit by the father filed 16 March 2016 (only paragraphs 1 – 21, 47 and annexures referred to in those paragraphs).
The Independent Children’s Lawyer relied upon the following documents:
a)Case information filed 11 March 2016;
b)Affidavit of Dr G filed 7 July 2014;
c)Affidavit by Nicola Davies (annexing report by Ms J) filed 19 August 2014;
d)Affidavit by Ms J filed 20 February 2015;
e)Affidavit by Ms J filed 21 April 2016;
f)Order 3 February 2016;
g)Order 27 April 2016.
Counsel for the Independent Children’s Lawyer advised the court that he did not seek that the earlier reports of Ms J or the report of Dr G be read but would refer to any relevant parts in his submissions. Ultimately he did not refer to any part of those reports.
Proposals of each party
The mother seeks the following order:
(1)That the mother have sole parental responsibility in respect of all health and medical treatment and education decisions of [the child N], save that the Mother shall, prior to making the sole ultimate decision about any such issue:
(a)Use her best endeavour to advise the father in writing of the decision intended to be made;
(b)Seek the father’s written response in relation thereto;
(c)Consider, by reference to the best interests of the children, any such response prior to making any such decision;
(d)Advise the father in writing as soon as reasonably practicable of her ultimate decision.
(2)That the father be restrained and an injunction issue retraining the father from having the children, or either of them, examined or treated or counselled by any health professional, therapist or counsellor, in connection with the children’s health and medical treatment without the written consent of the mother or order of the court first had and obtained.
(3)That the child, [N], spend time with the father during school terms each alternate weekend from commencement of school on Friday until 6 PM on Sunday (or Monday if a public holiday or pupil free day).
The father seeks the following order:
(1)That the parents have equal shared parental responsibility for the child, [n];
(2)In exercising their parental responsibilities the parties shall consult with each other and reach agreement on major long-term issues which include (but are not limited to):
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with or live with the other parent.
(3)In respect of the exercise of equal shared parental responsibility for [N’s] education, in the event of a significant matter arising, a meeting shall be arranged between the parents, and [the child’s] form co-ordinator and [the child’s] treating therapist to attempt to reach a consensus as to the best approach to resolve the matter in [the child’s] best interest.
(4)In respect of the exercise of equal shared parental responsibility for [the child’s] health, the following shall apply:
(a)Dr [B] (or his nominee if he is no longer available) shall be the only general practitioner upon whom the child shall attend and each parent is hereby restrained from having the child attend upon any other general practitioner without the express consent of the other parent or in the event of a health emergency;
(b)the child shall not attend upon any medical or other allied health practitioner for treatment (excluding orthodontist [Dr S]) unless she is referred to that practitioner by Dr [B] or his nominee;
(c)the parents shall comply with all referrals and treatment recommended by Dr [B] or his nominee;
(d)the parents shall each be at liberty to attend upon any and all of [the child’s] treating medical and allied health practitioners and shall alternate in taking [the child] to appointments with those practitioners;
(e)each parent is hereby restrained from cancelling or altering any appointment made for the other parent to attend with [the child] upon any of her treating practitioners;
(f)each parent is hereby restrained from taking [the child] to any therapist or counsellor until a new referral issues from Dr [B] or his nominee.
(g)In the event that the mother and father are unable to reach an agreement on any of the issues referred to in paragraphs 3 or 4 herein, the mother and/or father shall make arrangements for the parties to each attend upon such family dispute resolution practitioner as is agreed, or failing agreement upon Mr [H] (personally or by telephone) to resolve the issue in dispute.
(5)The parties shall pay the costs of the family dispute resolution practitioner (if any) equally.
(6)That the child [N] spend time with the father during school terms as she chooses, but no less than each alternate weekend from commencement of school Friday until commencement of school Monday.
(7)Both parties are hereby restrained from discussing with either child the outcome of these proceedings until such time as the Independent Children’s Lawyer has had an opportunity to advise them.
Notation:
The Independent Children’s Lawyer intends to speak with each of [D] and [N] separately at the earliest possible time in order to explain these orders and their effect to them.
I note that until submissions were made by the father’s counsel, his position in relation to time was that the younger child spend time with him during school term as she chooses but not less than each alternate weekend from the commencement of school Friday until 6.00 pm Sunday. The only dispute between the parents up until that time was the inclusion of the words “as she chooses but not less than”. The father sought and was granted leave to further amend his order sought during his counsel’s submissions.
There is no evidence from Dr B as to whether he would be prepared to undertake the role suggested in the father’s proposal.
The only witnesses required for cross-examination were the parties and Ms J.
Relevant statutory provisions
Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer. (see Goode & Goode (2006) FLC 93-286; SCVG & KLD ; Banks & Banks (2015) FLC 93-637)
Section 60B(1) relevantly provides that the objects of the Act 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.
Section 60B(2) relevantly provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children;
e)…
Section 60CA provides that in deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary and additional considerations that the court is to take into account in determining what is in the best interests of the child.
Section 61DA provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.
Where the presumption does apply the court is required to consider s65DAA as to equal time or substantial and significant time.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Significant issues
The issues addressed by the parties and Independent Children’s Lawyer concerned the following:
a.The capacity of the parties to make decisions jointly;
b.The impact on the younger child of making an order contrary to her expressed wishes;
c.The impact on the younger child of leaving her with the decision making power regarding any extra time she might spend with the father;
d.The capacity of the mother to promote the father’s relationship with the younger child.
Evidence at trial
Ms J
Ms J is a very experienced social worker who has prepared three family reports in this matter. She first saw the parties and children on 16 June 2014, then again on 4 December 2014 and finally on 17 March 2016.
In relation to the proposals of the parties (as they were at the time she gave her evidence) Ms J expressed very firm views that these parties did not have the capacity to reach agreement in relation to the significant issues of education and health and that a continuation of the current attempts to do so would simply prolong the stalemate and delay decisions being made. She was also firmly of the view that the younger child should not be put in the position where she is required to make a decision about whether or not she spends extra time with her father. Ms J opined that while the child can be quite forthright in expressing her views she nevertheless remains vulnerable to the pressure that she has expressed to have felt at the behest of her father. She described the younger child as an anxious child who needed to feel that she was able to organise herself for school, hence her wish to return to her mother on Friday afternoon and Sunday afternoon rather than going straight to her father’s on Friday or be taken to school on the Monday morning by her father.
In paragraph 91 of her most recent report Ms J refers to the fact that the “conflict continues unabated”. When asked whether the recent agreement in relation to a number of matters changed her view she said it most definitely did not because, while both parents can be very sensible and are good parents in their own right and can agree on some things, the big sticking point is the issue of the children’s mental health and how that has extended to affect schooling. She expressed the view that it was how to manage the children’s mental health that has been the basis of the significant difficulties.
In paragraph 96 of her most recent report Ms J says as follows:
[The mother] conveys emotional exhaustion from [the father] finding complaint with everything she does. As she sees it, he looks for sinister motives constantly. She has been at her wits end trying to manage the children’s mental health problems. She has needed to do this virtually single-handedly since he doesn’t accept that [the children] experience distress in aspects of their relationship with him and he doesn’t accept professional diagnoses and recommended treatment regimes.
During her oral evidence she stressed that these ongoing problems relating to health and education need to be resolved. She stated that for the children, the disagreements cause stress. She stated that they know what they want albeit that the younger child may not always know what is best, given her age. They express feeling that life is on hold and nothing is happening. She reiterated that in her view, it was important for the younger child’s wishes to be taken into account and respected in so far as they are assessed to be in her best interests.
In her dealings with the mother she expressed the opinion that the mother seemed happy for the children to have time with their father and accordingly she expressed reasonable confidence that if the younger child said she wanted to spend more time with her father then the mother would not stand in her way.
In her most recent report commencing from paragraph 102, Ms J stated as follows:
[The younger child] is 12 ½ years old. She expresses her wishes strongly too. [This was a reference to the older child expressing his wishes strongly] She wants fortnightly visits from Friday evening until Sunday evening as well as half of the school holidays…
I note that both children [including the older child] have been consistent between last assessment and this time.
[Both of the children] are at ages where they need to have a strong voice in how they divide their time. As I see it, their attitudes are responsible and they are not placing themselves at risk.
It is my view that [the father] risks losing his relationship entirely with them if he tries to force their hand on this. They love their dad and he is important to them, but they are teenagers and they want his validation of their views too. [The father] needs to recognise that it has not been easy for them to express their wishes in the face of his opposition.
I recommend that the children live with their mother and spend time with their father every second weekend from Friday after work until Sunday evening as well as half of the school holidays. Clearly they can spend extra time with him as agreed.
…
In this family, all three children are suffering mental health issues. Decisions about managing this and its implication for schooling have been hamstrung by parental conflict. Each decision has taken months in the making. There is a strong case for arguing that this has been detrimental to the children.
….
It is my view that one parent should have sole responsibility for decision-making and should keep the other informed. Since the children are adamant that they wanted to live with their mother, this responsibility would therefore need to rest with her.
[additions in square brackets are the writer’s]
She stated that the younger child was clear that she wished to continue to see Dr C, which put her in direct conflict with her father’s views. The child was also clear about wanting her mother to make decisions about her healthcare and schooling and she felt that in relation to the health issue this was all about her being able to continue to see Dr C.
In her oral evidence, Ms J opined that the ongoing conflict had an adverse effect on the children’s relationship with the father. She added that the father rightly expressed the view that he is seen as the ‘bad parent’. She said that in her opinion, this was coming from the children, not the mother as the children are very thoughtful and think things through.
While Ms J expressed regret at having to recommend that the mother have sole parental responsibility on these issues and stated that the father thinks very deeply about these issues, she opined that the problem arose because the parents have fundamentally different views and are therefore unable to reach agreement.
Ms J stressed that these are sensible parents with some capacity to give and take, but because of their fundamental differences on mental health issues in particular, she had no confidence in their ability to compromise on these issues in future.
When asked about the father’s concerns relating to the younger child’s absenteeism from school (which was significant last year), she stated that one has to consider the cause for such absences. She noted that the father took the view that the mother had taken the ‘soft option’ but she states that the mother had described an extremely distraught child on occasions and that she simply could not get the child to attend school. Ms J also noted that there is an existing diagnosis for this child of anxiety and ADHD, but no current treatment. She said that the psychological cause underlying this issue of absenteeism is what needs to be attended to and this is what the parents are in dispute about. She agreed that they were both competent and caring parents and that either of them could exercise parental responsibility for the younger child.
The mother’s oral evidence
During cross-examination of the mother by the father’s counsel, the mother expressed the belief that the father had sexually abused the older child D or at least there was a possibility of him having done so. When pressed to state the evidence upon which that belief was formed the mother referred to a number of matters:
a.The older child in recent weeks describing a memory of being kissed by a man with a beard;
b.The fact that the child was diagnosed with genital herpes some years ago and an explanation having been given at the time that he had caught it from a towel but her now knowing that it could only be caught from direct sexual contact;
c.His complaint of anal pain some years ago;
d.The fact that the father had taken the older child up to his room one-on-one to show him his penile piercing; and
e.The child’s years of resistance to living with his father.
Despite this evidence the mother also stated that, in her view, the children love their father very much, although they are scared of him and do things to please him. Despite holding this belief and conceding feeling angry and upset about that issue she denied general feelings of enmity toward the father.
I note that the mother’s case was not one in which sexual abuse issues were raised.
The mother denied that her belief that the father had acted in a sexually inappropriate way with the older child in the past would make it difficult for her to encourage the younger child to spend additional time with her father. She stated that she would be able to encourage additional time because Ms J had said that the children would not put themselves at risk and that the issue with the older child was historical and not an issue for the younger child’s safety.
The mother stated that although she did not send the children to spend time with their father on the weekend after the family report interviews she generally complied with all court orders and failed to do so on that occasion because of the significant distress demonstrated by the children in seeing their father in such proximity to the interviews with Ms J when they had expressed views that they perceived would not be well received by their father.
The father’s oral evidence
During cross-examination of the father by the mother’s counsel he gave the following evidence:
a.He believes that the mother suffers from Munchausen’s by proxy and that she has a co-dependent relationship with the children;
b.The younger child should not have an ongoing therapeutic relationship with Dr C;
c.He did not trust the mother to make good decisions relating to the child’s medical needs;
d.He had recently taken the child to a dentist without prior discussion with the mother and to see a Dr Q in circumstances where the mother had specifically stated that she did not consent;
e.He had placed the child on a diet to eliminate dairy, gluten and sugar without consulting the mother;
f.The basis upon which that decision was made was conveyed to the mother via a one page handwritten document given to the mother via the child; (that document appears at annexure UA9 to the mother’s affidavit filed 19 April 2016. It is not on letterhead. It is not signed. There is no diagnosis.)
g.He had taken the child to see a psychologist by the name of ‘Ms Y’ only two weeks ago without obtaining consent from the mother;
h.He had instructed his solicitor to write to the mother’s solicitor, on two occasions, once on 29 June 2015 and the other on 18 November 2015 stating that he required a third party to be present if he and the mother were in the same room;
i.He eventually consented to the younger child attending V School but only on the condition that the mother paid all of the school fees and that there would be a review after a year;
j.He initially disputed that the review related to the possibility of changing the child’s school and stated that it was only to assess whether or not she needed additional resources but he eventually conceded that one of the issues under review would be whether or not she continue at that school;
k.Although he had never taken the children to see Dr C he had had one-on-one meetings with him and had received numerous emails from Dr C in relation to his treatment of the children;
l.He had sought a second opinion in relation to the older child’s involvement with Dr C from a psychiatrist by the name of Dr E;
m.Dr E stated that in his view the medication prescribed by Dr C was appropriate; that the older child had a good therapeutic relationship with Dr C and should continue to see him but he had a query about whether or not there should be psychologist involvement;
n.He conceded that Dr C had tried various treatments including being assessed by a psychologist, Mr F;
o.He did not necessarily object to the younger child being treated with Ritalin but just wanted to explore other avenues first;
p.Brain mapping was one of those other avenues but after obtaining an estimate of cost for such assessment at between $12,000 and $20,000 he did not proceed because the cost was prohibitive;
q.He accused Dr C of lying in relation to the material upon which he relied to arrive at his diagnosis of ADHD for the younger child;
r.The lie was said to be that Dr C said teachers had provided evidence which supported the diagnosis of ADHD when they had not;
s.Despite the father being a health professional and aware of his ability to formally complain to APRA about Dr C he conceded that he had taken the issue no further;
t.He may have told the children on one occasion that it would be better if Dr C were not involved;
u.He had discussed with the younger child his negative views of psychiatry and in particular that homosexuality was at one stage included in the DSM IV;
v.The younger child had not been fully immunised but he denied that he did not believe in immunisation. He stated that the decision not to vaccinate was a joint decision and denied that the mother simply acquiesced;
w.He could not offer any suggestion for resolution in the event that he and the mother were in future unable to agree on matters and if alternative dispute resolution was unsuccessful he suggested that they go to a second round of alternative dispute resolution;
x.He conceded that they had already unsuccessfully mediated in relation to a number of issues on about five occasions;
y.He believed the mother loved the children as much as he did;
z.He had approached the mother in the past for extra time with the younger child and there was only one occasion, a recent request to attend the blues festival with the child, that the mother refused and gave reasons for the refusal;
aa.He attends the younger child’s extracurricular activities on Mondays and talks to her after class;
bb.He speaks to her by telephone on Tuesdays;
cc.He is now coaching her sports team and sees her at training on Wednesday and Friday nights and at the game on Saturday;
dd.He also speaks to her by telephone on Thursday and on Sunday, although he stated that she was not always there;
ee.He conceded that he would in fact be best for the parents to make decisions about extra time but he was not confident that the mother would do so.
Having reviewed the written material and listened to and observed the parties and Ms J and having considered the submissions made on behalf of the Independent Children’s Lawyer and the parents I make the following findings:
a.The parents both love the younger child N and want what is best for her. I accept Ms J’s assessment of the parties in this regard and it was also the impression I formed having the opportunity to observe them both;
b.The parents do not have the capacity to make joint decisions about the younger child’s healthcare and education. Again I accept Ms J’s assessment and it was apparent listening to the father’s evidence in particular that there would be no way to resolve an impasse other than further court proceedings. The parent’s views of each other would make it well nigh impossible for them to compromise their very firm views about health and education matters;
c.The fact that there have been some occasions where the parents have been able to reach agreement on some matters is not a sufficient basis to find that they have the capacity to reach agreement on matters relating to healthcare and schooling;
d.The history of their disagreement on these matters has been detrimental to the younger child even if only because of the delay in making decisions, but the most striking detriment is that despite Dr C making at the very least a provisional diagnosis almost eight months ago that the child suffers from ADHD and that treatment was warranted, nothing has occurred to progress any treatment for the child;
e.The parents’ inability to make joint decisions has embroiled the younger child in conflict and I accept the mother’s evidence of the child telling her that the child and her father have argued about decisions that have been made or were to be made in relation to her healthcare and I note the father’s concessions in relation to what I regard as his attempts to undermine the therapeutic relationship between Dr C and the child e.g. telling her the treatment proposed by Dr C would harm her;
f.The parents’ inability to make joint decisions has, at the very least, delayed decisions being made for the younger child that may have been for her benefit e.g. trialling Ritalin which may have minimised her symptoms and made her more likely to want to attend school (I note Ms J’s concern that the reason for the child’s absenteeism may have been related to the underlying issues assessed by Dr C);
g.The parents’ conflict cannot have been helpful for the younger child’s underlying anxiety disorder e.g. knowing that her parents are in dispute about what treatment she should have or what school she should attend would be unlikely to assist in ameliorating her anxiety;
h.The younger child prefers to be able to organise herself and her requirements for school both before going to her father’s home on Fridays and before returning to school on Mondays. This is what she has said to Ms J and her mother;
i.The younger child, at nearly thirteen, is of an age where her views need to be considered and respected;
j.The younger child has a meaningful relationship with each parent and that should continue. I accept Ms J’s assessment and the mother’s concession that the child loves her father and wants to spend time with him;
k.The order I propose to make will ensure that the younger child has the opportunity to continue a meaningful relationship with each parent;
l.The best way to protect the younger child from exposure to ongoing conflict is not to include in an order any suggestion that implies she must express views about spending extra time with her father. I note Ms J’s evidence, which I accept, that the child has expressed feeling pressure from her father at times to make decisions or express views that she thought he wanted;
m.If the order did include an express provision that the younger child spend extra time with her father in accordance with her wishes I am not confident the parents would be able to agree that any wishes she may express were independently held and would likely lead to further dispute between them. I pay particular attention here to the feelings of pressure to express a particular view that the child has spoken about with Ms J;
n.The father is able to see and communicate with the younger child at times other than the precise time specified in an order because of her attendance at extracurricular activities, his coaching of her sports team and his communication with her by telephone;
o.The best way to ensure that the younger child and the father continue to have a meaningful relationship is to make an order in accordance with the child’s very clear and strongly expressed views. I can only hope that the father pays heed to Ms J’s sound advice that he risks losing his relationship with the child if he does not listen to her clearly stated views as reported by Ms J;
p.Although the mother holds beliefs that the father has acted in a sexually inappropriate manner with the older child in the past, this belief has not and will not prevent her from promoting the younger child’s relationship with the father. I make this finding in particular because although her oral evidence initially seemed incongruent with such a finding, when I considered the entirety of her evidence on this issue and her behaviour to date in facilitating the younger child’s time with the father historically, and in proposing orders that the child spend alternate weekend time and holiday time, and in the conduct of her case in not presenting the sexual abuse issues as part of her case, I have come to the conclusion that such a finding is open and also accords with Ms J’s assessment of the mother;
q.Although either parent potentially has the capacity to make the decisions about the younger child’s healthcare and education, the child has clearly stated her preference for her mother to do so. Further, the father opposes the child continuing to see Dr C and the child has made her wish to continue her therapeutic relationship with Dr C clearly known, so if the father were to have sole responsibility for healthcare decisions it would put his views and the child’s views in direct conflict;
r.Making the orders sought by the father would be more likely to result in further litigation;
s.An injunction restraining the father from taking the children to other health professionals is necessary firstly because he has very different views to the mother about what appropriate treatment for a condition might be, secondly because he does not trust the mother’s judgment and thirdly he has demonstrated by his most recent conduct that he will implement treatment without there being any proper diagnosis and without consultation with the mother e.g. Dr Q’s involvement.
Although I seriously considered making the commencement time between the father and the younger child in accordance with the parents’ joint proposal and making the end time on Monday morning as is currently occurring I decided not to do so for the following reasons:
a.Such an arrangement goes against the child’s very clear preference for it to commence after school and after she has had the opportunity to go home to her mother’s place before going to her father;
b.Preference should be given to the child’s views because she is at an age where her views should be given considerable weight;
c.The child has a history of anxiety and in my view the best way to ensure her time with her father is a positive experience is to minimise the risk to her of feeling anxiety about school related matters and not being organised in the way that she feels is necessary;
d.Ms J has had the opportunity to observe and assess the child on three occasions and very strongly recommended that her views be acceded to if otherwise assessed to be in her best interests;
e.Ms J is a social worker with decades of experience and in particular in assessing parents and their children and I would not lightly dismiss her recommendation;
f.The father does not trust the mother to make decisions that are in the child’s best interests health wise and is opposed to the child continuing to consult with Dr C. I see no purpose therefore in commencing the Friday time from the Friday morning on the off chance that if she is unwell he will care for her or take her to appointments (which might include Dr C). This is only likely to increase the potential for conflict between the younger child and her father and between the father and mother. I propose to make an order as sought by the mother enjoining the father from taking the child to health professionals in any event;
g.If the child is attending school on Friday the difference in time spent with the father if she were to go from school as opposed to 6.00 pm is not significant;
h.The child is seeing or communicating with her father extensively at times other than the weekend time and she will spend half holidays with her father.
i.It may well be that after these proceedings have ended and there is no longer the avenue for conflict that has presented for so long in relation to decisions concerning the younger child, and the anxiety that the child has endured is able to be managed, then, it may be possible for the child’s time to be extended, and that will then be a matter for the parents to consider and extend time in accordance with their assessment of how the child will cope with such an extension.
As I do not propose to make an order for equal shared parental responsibility I am not required to consider whether equal time or substantial and significant time is in the younger child’s best interests but it is apparent from the reasons already set out that I do not consider such time to be in her best interests.
Before concluding my Reasons, I raise one final matter. Prior to the first day of trial there had been a dispute about the production of Dr C’s medical records in so far as they concerned the older child, D. Ultimately, the father did not press production when it became apparent to him that the child opposed him doing so. The child has not as yet been told that the father did not press this issue. Nor has the child been told that the father consented to the final order relating to the time spent between the child and the father. I consider it important that he be told about both matters and will make a request of the Independent Children’s Lawyer to do so.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 3 May 2016.
Associate:
Date: 3 May 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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