ASIKIS & MORIKIS (No.2)
[2010] FMCAfam 881
•16 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ASIKIS & MORIKIS (No.2) | [2010] FMCAfam 881 |
| FAMILY LAW – Parenting – 6 year old girl always been in primary care of Mother – Father seeks residence and sole parental responsibility order – issue of Mother’s capacity – Father’s application successful. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAC |
| Applicant: | MR ASIKIS |
| Respondent: | MS MORIKIS |
| File Number: | SYC 5496 of 2007 |
| Judgment of: | Sexton FM |
| Hearing dates: | 26, 27, 28 & 29 July 2010 |
| Date of Last Submission: | 29 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Clifford |
| Solicitors for the Applicant: | Watts McCray Lawyers |
| Counsel for the Respondent | Ms Clifton |
| Solicitors for the Respondent | David H Cohen & Co |
| Counsel for the Independent Children’s Lawyer | Ms Lawson |
| Solicitors for the Independent Children’s Lawyer | Adamson Solicitors |
THE COURT ORDERS THAT:
Orders (1)-(4) of Orders made 29 July 2010 be varied such that the following orders apply on a final basis.
[X] spend time with the Mother during school terms, from after school Thursday (or 3.00p.m. if a non-school day) until before school on Monday (or 9.00a.m. if a non-school day) in each alternate week, such time to commence on the first weekend [X] is due to spend with the Mother pursuant to the current interim orders.
The Father have responsibility for major decisions concerning [X]’s care and welfare, subject to Orders (4)-(9) and (16) of these Orders and Order (17) of Orders made 29 July 2010.
In relation to medical issues
The Father advise the Mother as soon as practicable, but no later than 14 days prior to any medical specialist appointment for [X], of the details of the appointment, including name and contact details of the specialist, and the Mother be at liberty to attend the appointment with the Father and [X].
In the event Dr P, or any other paediatrician or medical practitioner prescribes long term medication for [X], including but not limited to medication for ADHD, unless an emergency, the Father be restrained from administering such medication until the Mother has had at least 28 days written notice of details of the medical advice and the recommended medication, in order that the Mother have the opportunity to consult the medical practitioner and advise the Father of her attitude to the proposed treatment.
In relation to educational issues
The Father be at liberty to change [X]’s enrolment at school from [R] School to [N] School or another school in the vicinity of his [L] home, from the commencement of the 2011 school year, on condition that :
(a)The Father advises the Mother in writing by no later than the end of Term 3, 2010 of the name, address and contact telephone numbers of the school he proposes [X] attend in 2011, including the name of the Principal and the Court notes that this Order applies to the Father’s proposal to send [X] to [N] School as well as any other school proposed by the Father.
(b)The Father provides the Mother with copies of any written information he obtains in relation to the proposed new school by the end of Term 3 in 2010.
After visiting the school the Father proposes, the Mother write to the Father about any concerns she may have about the proposed school by no later than Week 2 of Term 4 in 2010.
The Father respond to the Mother’s concerns in writing and have regard to her concerns, before making a final decision about [X]’s schooling for 2011.
In relation to [X]’s secondary schooling:
(a)The Father advise the Mother in writing no later than the commencement of Term 2 of [X]’s final year in primary school, the name of the secondary school he proposes [X] attend, and his reasons for the selection.
(b)The Mother respond to the Father in writing, setting out her views on the Father’s proposal, within 28 days of receipt of the Father’s letter, after visiting the proposed school.
(c)The Father address the Mother’s concerns (if any) and have regard to any suggestions or comments the Mother makes, before making a final decision about [X]’s secondary schooling
Until further order, or unless otherwise agreed by the Father in writing, the Mother, Ms Morikis, by herself, her servants or her agents is hereby restrained from removing or attempting to remove the child [X] born [in] 2003 (female) from the Commonwealth of Australia.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit the Mother from removing or attempting to remove the said child from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship take all necessary steps to immediately place the said child’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
The Father have sole parental responsibility for giving authority and making arrangements for the renewal of [X]’s passport without the need for authorisation or signature of the Mother.
Within 14 days of the date of these Orders the Mother shall deliver or cause to be delivered [X]’s Australian and Polish passports to the Father’s solicitors and the Father shall thereafter retain [X]’s passports.
The Mother be permitted to remove [X] from the Commonwealth of Australia only with the prior written consent of the Father.
The Father be permitted to remove [X] from the Commonwealth of Australia without first obtaining the mother’s prior written consent upon condition that the father provides the mother with the following:
(a)No less than 6 weeks written notice of his intended travel;
(b)No less than 4 weeks written notice of the addresses of all places at which [X] will be staying whilst overseas;
(c)No less than 4 weeks written notice of contact telephone number(s) upon which [X] may be contacted whilst overseas;
(d)No less than 4 weeks prior to the date of travel, copies of [X]’s return airline tickets and a copy of her itinerary.
Pursuant to section 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 Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Asikis & Morakis (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5496 of 2007
| MR ASIKIS |
Applicant
And
| MS MORIKIS |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns parenting arrangements for [X] who is 6 years of age. The parties ended their relationship when the Mother was pregnant with [X].
The parties reached substantial agreement on [X]’s arrangements and on a number of other parenting issues during the course of the 4 day hearing. The agreement was consistent with the recommendations of the two experts who gave evidence at hearing. I made orders in accordance with the parties’ agreement on the 4th day of hearing with the exception of the parties’ proposal for a varied parenting schedule. At the same time, I dismissed an application for costs by the Father and by the Independent Children’s Lawyer.
The parties seek an order providing for [X] to continue to spend 4 nights a fortnight with the Mother but rather than 3 nights in one week and 1 night in the other, the parties believe [X] would be happier and more settled in each household if she spent 4 consecutive nights with the Mother, from Thursday to Monday in each alternate week. I questioned each party’s and the Independent Children’s Lawyer’s counsel as to whether such an arrangement should be delayed until next year, given [X] had already faced a significant change in her living arrangements only a few months ago. The Independent Children’s Lawyer supported such a delay. The parties did not support any delay. Neither expert witness gave evidence on this particular issue.
Variation of parenting arrangements
The Father’s counsel submits that [X] adjusted well to the change in her residence in February 2010 and that there is therefore no basis for concern about her ability to adjust to a relatively minor change in arrangements now. Both the Mother’s and the Father’s counsel submit that the parties’ agreement to an immediate change to a schedule involving [X] spending 4 consecutive nights in the Mother’s household should carry significant weight. Counsel for the Independent Children’s Lawyer did not strongly contest the issue. I am not persuaded [X]’s welfare will be affected adversely by an immediate change as proposed by the parties, and given the parties’ agreement on the issue, I have decided the change will occur from the date of these Orders.
Parental responsibility
The remaining question for determination is who should have parental responsibility for major decisions concerning [X], including but not limited to, the choice of [X]’s school, the choice of medical interventions for [X]’s health and development, and the choice of whether and under what conditions [X] should have a passport and travel overseas. The Father seeks a sole parental responsibility order, while the Mother seeks an order for equal shared parental responsibility. The Independent Children’s Lawyer supports the Father’s application, on condition that the Mother is kept fully informed of the decisions the Father proposes to make. Dr R, Consultant Psychiatrist made the following comment on the issue:
…it would really depend on how the mother is able to respond to, you know, potential changes and whether or not she can support the father with regard to appropriate action for the child’s welfare, both health and education. But if she is not able to support the father, then it would be appropriate for the father to have sole responsibility.
Ms M, Family Consultant recommended that the Father have sole parental responsibility for all major decisions concerning [X].
Background facts
Until February 2010, [X] lived primarily with the Mother. Since then, as a result of interim orders made in February, [X] has lived primarily with the Father. She has spent each alternate weekend from Friday afternoon until Monday morning, alternate Wednesday afternoons until Thursday morning as well as half school holidays and other special days, with the Mother.
The parties separated when the Mother was pregnant with [X].
The Father is 32 years of age. He is a [omitted] working, for the most part, from 9 a.m. until 3 or 4 p.m. each weekday. The Father has lived with his now fiancé, Ms V since 2003. They live in a home they own subject to mortgage, in [L]. They have a new baby, born a week before trial. Ms V was working full time until shortly before the baby’s birth, but for the foreseeable future, plans to remain at home with the children.
The Mother is 28 years of age and lives with her partner, Mr M, in rented accommodation in [M]. She is working 6 hours a day, 5 days a week in a [workplace omitted] close to [X]’s school in [O]. Mr M is employed in the [omitted] industry.[X] is in Year 1 at [R] School, having started school in 2009 at [S] School. According to Mr W, psychologist, who conducted a comprehensive assessment of [X] in March 2010, [X] has special needs[1]. He summarised his assessment in these terms:
[X] is a 6 year 2 month old girl whose level of general intellectual abilities falls within the Borderline Mild Intellectual Disability range… The low score in her verbal abilities may probably attribute to some existing language skills deficiencies… it appears that [X] has exhibited some prominent features of Attention Deficit Hyperactivity Disorder (ADHD).
[1] Annexure B to affidavit of Mr W sworn 23 July 2010.
Mr W made a number of recommendations in his report, including the need for [X] to undertake a speech assessment and the need for a paediatrician to further assess her demonstrated features of ADHD.
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3). Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Legal principles concerning parental responsibility
Section 61DA requires the court to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility for the child. Section 65DAC applies whenever a parenting order provides for shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or
b)Family violence.
Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In the present case, appropriately in my view, neither party’s counsel nor counsel for the Independent Children’s Lawyer submits the presumption should not apply because of abuse or family violence. The question is whether or not it is in [X]’s best interests for the parties to have equal shared parental responsibility. To determine this question requires the Court to consider the factors in sections 60CC(2), (3) and (4) of the Act, as far as they are relevant.
The primary considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents.
In accordance with the orders already made, [X] will live with the Father and spend 4 nights a fortnight, as well as half school holidays and time on special days with the Mother. [X] will therefore continue to benefit from a meaningful relationship with both her parents, whatever decision is made about parental responsibility.
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
[X] has been exhibiting sexualised behaviour at school since approximately mid-2009. The Father says he has observed her sexualised behaviour since well before she started school. In Dr R’s view there are a number of possible causes of [X]’s behaviour. They include:
(a)That she was the subject of photographs of a sexual nature taken by the Father’s fiancé’s brother, Mr V;
(b)That she may have witnessed sexual activity between her Mother and Mr M or her Mother and other partners;
(c)That she may have been exposed to sexually explicit material on television; and/or
(d)That she may have been exposed to other children who have displayed similar behaviour.
Dr R believes [X]’s mild intellectual disability may also affect her ability to behave appropriately at times and may cause her to be easily influenced. Dr R also had concerns about the impact of the instability and acrimony between the parties on [X]’s behaviour. On the evidence available to him, Dr R was unable to form a view as to the precise cause of [X]’s sexualised behaviour. Dr R strongly supported [X] continuing counselling with Ms F and [X] living in the stable environment offered by the Father and Ms V.
Ms M formed the view that [X]’s psychological health was at risk when in the primary care of the Mother. Ms M said the Mother showed limited insights into [X]’s needs or into her own deficiencies as a mother. As recorded in my reasons for judgment in the interim proceedings in February 2010, Ms M was highly critical of the Mother involving [X] directly in the parties’ conflict. In particular, she described the Mother:
(a)Telling [X] to cry when she saw the Father at interview with Ms M in early 2010.
(b)Requiring [X] to respond to “who has hit you?” in front of the Father and Ms V.
(c)Questioning [X] at length about her interview with Ms M, causing extreme and prolonged distress to [X].
There are other examples of the Mother inappropriately questioning [X] and thereby putting her at risk of emotional harm.
(a)I accept the evidence of Ms A when she said the Mother used to ask [X] frequently what she would say if she were asked with whom she wanted to live. If the answer was “Mummy” she would receive a reward. If the answer was “Daddy” she would receive a smack.
(b)In Dr R’s view, the Mother naively questioned and responded to the child’s statements about the Father touching her, without processing them properly. In his view, the Mother overreacted to [X]’s remarks[2]. Again, in his view, the Mother overreacted when she accepted at face-value comments from [X] suggesting she was treated cruelly at the home of the Father and Ms V.
[2] Page 29 of extract of Transcript of Dr R’s evidence given 26 July 2010
It is common ground that the Mother has lacked stability until recently which impacted adversely on [X] while [X] remained living with her. [X] had 13 changes of residence and experienced the Mother in a number of different relationships before the Mother’s present relationship started with Mr M. [X] also had a change of school while in the Mother’s primary care. While Dr R and Ms M both commented positively on the Mother’s improved stability in recent months, neither were confident her stability would be sustained in the long term, based on her past history.
I find the Mother lacks focus on [X]’s needs, particularly her emotional needs. In my view, the Mother is unlikely to exercise sound judgment when making decisions about [X]. I am persuaded that if the Mother were to be responsible for any major decision about [X], she would be likely to involve [X] inappropriately in the decision-making process, may even co-opt [X] in some way to lend weight to her position and this would put [X] at risk.
This is a factor to which I give significant weight.
The relevant additional considerations
The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
Both Ms M and Dr R formed the view that the Father understood the importance of [X]’s relationship with the Mother and would ensure [X]’s relationship with the Mother was supported. This assessment was not dependent on the parties equally sharing parental responsibility. However, both experts formed the view that the Mother had little insight into the importance of the Father in [X]’s life[3]. Ms M did not believe the Mother’s attitude towards the Father had changed positively over time.
[3] Page 19 of extract of Transcript of Dr R’s evidence given 26 July 2010
I agree with the expert opinion on this issue that the Mother does not demonstrate a commitment to facilitating [X]’s relationship with the Father in that, although the Mother allows [X] to spend time with the Father, she does not support [X] emotionally in that relationship. The Mother has formed a fixed view that [X] is at risk of sexual harm in the Father’s household, despite the measures that have been put in place to ensure [X]’s protection from further exposure to inappropriate conduct. She is not open to an alternative opinion. The Mother persisted in her view that [X] had suffered serious harm from being photographed in sexual poses by Mr V despite the lack of evidence to support her view. The Mother was either not willing or not able to understand Dr R’s evidence, that if handled appropriately by the parties, [X] should suffer no adverse consequences from being the subject of those photographs. Dr R said:
…it needs to be managed and thought through by caring adults to handle the situation rather than becoming, I guess, extremely alarmed and overreacting to the situation[4].
...I would have thought if these photographs were a one-off situation and if that’s all they were and nothing else adverse happened to her, that I would downplay it[5].
I think if the parents manage the situation in a sophisticated and mature way and ensure that the child is not exposed to any more of these events, and that there’s a certain degree of, perhaps, discussion or counselling around the events to ensure that nothing more substantial has happened, and then it’s supposedly, dealt with adequately, then it shouldn’t have any ongoing adverse effect on the child[6].
[4] Page 39 of extract of Transcript of Dr R’s evidence given 26 July 2010
[5] Page 41 of extract of Transcript of Dr R’s evidence given 26 July 2010
[6] Page 43 of extract of Transcript of Dr R’s evidence given 26 July 2010
If the Mother continues to hold her fixed view on this issue against the weight of available evidence to contradict her view, I am not satisfied the Mother would be open to processing and giving proper consideration to the Father’s views on other important issues concerning [X]’s welfare.
I am also satisfied that there is a risk to [X]’s emotional health if major decisions concerning her welfare are delayed or avoided because of the parties’ inability to discuss important issues sensibly and constructively in a child-focussed way.
The capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs
In Dr R’s opinion, the Mother does not have an ongoing psychiatric illness, but she has poor insight into the impact of her own behaviour on [X]. I have already addressed this issue.
Dr R said there was a possibility the Mother suffered from a personality disorder, but he was not prepared to make that diagnosis at this stage. He said the Mother had faced a number of significant changes which had impacted on her adolescent development and formed the view that the Mother may yet be capable of achieving some positive outcomes for herself[7].
[7] Page 11 of extract of Transcript of Dr R’s evidence given 26 July 2010
As already noted, Ms M formed the view that the Mother had difficulty in focussing on [X]’s needs. She believed her preoccupation with the ‘sexual issues’ was unhealthy. In her opinion the Mother has an ongoing concern about the experience of [X] being inappropriately photographed and this will negatively impact on [X]. Ms M had no concerns about the skill of the Father to manage this issue into the future.
I find the Mother has poor insight into [X]’s educational needs.
She was unable to accept that [X] was not managing well at school in second semester 2009, despite significant evidence to the contrary from the school, of which the Mother would have been aware. While [X]’s second semester 2009 report stated that she was struggling academically the Mother saw nothing wrong with her progress. The Mother did not address the difficulties [X] was experiencing in her social relationships, or her academic work, which were set out in a letter to the Father from the school principal in September 2009. In the Mother’s care, [X] missed 12 full days of school in second semester 2009 and had an additional 9 partial absences. The Mother saw no problem with these absences. While the Mother accepted that [X] had improved in 2010 since she has lived with the Father, she gave no credit to the Father. She said “a child will be better every year they go to school.” I found this response superficial and naive, if her genuine belief.
The Mother did not accept that [X] needed help with her speech in her first year of school and took no steps to assist her with speech. However, the speech assessment arranged by the Father in March 2010, says [X] has a “mild overall language disorder” and her expressive vocabulary was “severely disordered”[8]. Ms M said [X]’s speech problems were evident at interview in 2009.
[8] Annexure B to Father’s affidavit sworn 1 July 2010.
The Father arranged for [X] to be assessed by Dr P, paediatrician, upon the recommendation of Mr W, the counsellor who had undertaken an assessment of [X] at the school. Dr P stated in his report that he had formed the view that [X] had features of ADHD. In cross examination, Dr P explained that [X]’s presentation might arise as a result of her anxiety. Given the number of complex issues faced by [X], he was far from convinced she suffered from ADHD and required medication. Dr P said it is often hard to tell the difference between a child presenting with anxiety and ADHD. In Dr P’s view, in a case such as this, in which a child has suffered considerable instability in her day to day life, a cautious approach should be taken. Dr P was impressed by Ms V’ grasp of the issues when she took [X] for the consultation, and decided to review [X] when she had spent more time living in the Father’s household.
The Mother misunderstood Dr P’s report when she first received it. The Mother formed an immediate and fixed view that Dr P had said that [X] suffers from ADHD, a diagnosis with which she strongly disagreed. Rather than seeking clarification of its meaning from a medical practitioner, or from Dr P himself, the Mother took her strongly held and incorrect view to the school principal to complain. The Mother says in evidence that under no circumstances would she ever consent to [X] taking medication for ADHD, whatever medical advice she received.
I regard the Mother’s attitude to [X]’s education and presentation generally, shows a lack of understanding of the importance to [X] of receiving appropriate professional support and assistance to help her progress. In particular, the Mother herself took no initiative to have [X] assessed by a paediatrician, despite [X]’s presentation in 2009 as described by the school and despite the behaviours [X] must have been exhibiting at home, as have been observed by the Father particularly since she has been in his care. Secondly, the Mother did not seek clarification of the contents of Dr P’s report before leaping to an incorrect conclusion about what it said. Thirdly, the Mother shows an unwillingness to seek or listen to expert advice. Finally, I find the Mother is in denial about [X]’s intellectual difficulties and her need for professional assistance and support to maximise her potential. I am therefore not persuaded the Mother should be given the responsibility for making decisions about the interventions [X] may need in the future in this regard.
I am satisfied the Father has demonstrated an awareness of [X]’s needs and a commitment to addressing those needs and Ms V is equally committed to assisting [X]. The Father described his observations of [X]’s behaviour at home and showed a clear understanding of her need for appropriate professional help. He said [X] was at times hyperactive and lacked concentration. She moved around a lot, rushed her speech, needed breaks when she was required to concentrate and was at times rough with other children.
I give these findings substantial weight in reaching my decision.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
As already noted, [X] has special needs as identified by child health professionals. This is a factor to which I have regard.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I agree with Dr R that the Mother did not appreciate that her own actions resulted in the Court’s decision in February 2010, to move [X] to live primarily with the Father, but rather chose to blame the Father and others for the Court’s decision. It is noteworthy that one of those she blamed was Ms A, who reported on the Mother last year leaving [X] in her care for days on end, while the Mother spent her time partying with her then new boyfriend, Mr M. I was impressed by Ms A as a witness and accepted her evidence in its entirety. The Mother seems to me to have difficulty accepting responsibility. A minor example was when the Father rang the Mother to tell her [X] had lice in her hair. Rather than thanking the Father for telling her, and working out with the Father the best treatment for ensuring there would be no re-infection, the Mother blamed the Father (who had only just collected [X]) and hung up.
I agree with Dr R that the Mother has failed to provide [X] with appropriate interventions to assist her with her learning and speech difficulties and showed no insight into her need for those interventions. Despite telling the Court she would be willing to take [X] to therapy, the Mother expressed her clear and unequivocal view that [X] was progressing satisfactorily. This is consistent with her decision of earlier this year not to follow up the psychological assessment undertaken by [X]’s school counsellor, when invited by him to do so, nor to collect Mr W’s report from the school office. Dr R said if the Mother accepted that [X] needs professional supports, it may be helpful to have the Mother involved in decisions about these interventions, but otherwise the Father should make these decisions alone.
I am not satisfied that even after hearing the expert evidence, the Mother understands that [X] needs professional support to assist her with her special needs. There is no evidence to satisfy me that the Mother is able to put [X]’s needs ahead of her own any more now than she could at the time of her interviews with Ms M in 2009 and 2010. I am not persuaded the Mother’s attitude has changed.
On the other hand, the Father and Ms V did meet Mr W who then explained [X]’s special needs and gave them strategies to assist her with her needs. Mr W says Ms V followed up with him on a number of occasions to discuss strategies to implement the token reward system in the home.
I give my findings under this factor considerable weight.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
If the parties are unable to reach agreement about major issues concerning [X], I find it likely one or other party would institute further proceedings to resolve those disputes.
Any other fact or circumstance that the court thinks is relevant
The Father wishes to change [X]’s school next year, so she can go to a school near his home. The Father believes the current travel from his home to [R] School of over an hour each way, is too onerous for [X]. He would also like [X] to have her friends in the local community. While acknowledging another change of school is not ideal for [X], both experts agreed that if [X] were living with the Father, it would be impracticable to leave her at her present school for the reasons outlined by the Father, beyond the end of this year.
The Mother was adamant that [X] should not change schools under any circumstances. In support of her view, she claimed that [X] “likes driving.” She said the [L] area is dangerous and “I will never agree to that school or her changing school at all.”
I am not satisfied the Mother understands the benefits associated with a child attending school near to home and again showed an incapacity to consider carefully other views apart from her own.
Conclusion
It is common ground that there is currently no communication between the parties. The Mother says the Father is not willing to communicate with her as she would wish. The Father says he has given up trying to communicate because the Mother appears incapable of a rational, constructive discussion about anything concerning [X]. The Father said he recognises his need to improve communication with the Mother in the future for [X]’s sake. It is noteworthy that the Father has noticed the difference in [X] since he has been making positive comments about the Mother to her.
Dr R formed the view that there had been “some communication”[9] between the parties in the past and there was some potential for the parties to discuss issues between them “to a limited degree”[10]. Ms M was more pessimistic in this regard.
[9] Page 29 of extract of Transcript of Dr R’s evidence given 26 July 2010
[10] Page 66 of extract of Transcript of Dr R’s evidence given 26 July 2010
While I hope the parties are able to improve their communication after this litigation has been finalised, I have concluded that an equal shared parental responsibility order would be unworkable. I have particular regard to my findings about the Mother’s capacity for parenting and the Mother’s attitude to parental responsibility. I am not satisfied the Mother has the capacity to understand the complexity of [X]’s needs necessary for effective decision-making about her. The Father will therefore have sole parental responsibility.
However, in my view, it is important that the Mother have some input into major decisions about [X], and I am not confident her input will be sought by the Father without orders of this Court. It is important the Father recognises the importance to [X] of the Mother being involved in decision making about her, even in a limited way. I will order accordingly.
I have given consideration to the question of [X]’s overseas travel. Each party says he/she would like the chance to travel overseas with [X]. The Father seeks a watch list order to prevent the Mother from removing [X] from the country as a result of the Mother’s previous decision to take [X] to [Europe] for several months without his consent, and in the knowledge he would have opposed such travel. The Father also seeks control over [X]’s passport and the freedom to travel any time, upon reasonable notice and information being provided to the Mother. The Mother said she has no objection to the Father taking [X] overseas as long as she has prior knowledge of what is planned.
I have decided the Father should be permitted to travel overseas with [X] on condition he provides appropriate information to the Mother well before departure. It is therefore sensible that the Father have control over [X]’s passport.
Given my findings in relation to the Mother’s poor insight into the impact of her past behaviour on [X], including taking [X] away from the Father to [Europe] for a number of months, I have decided [X]’s name should remain on the watch list to prevent her travel outside Australia with the Mother, without the Father’s prior written consent. In reaching this decision, I also have regard to the possibility, as raised by Dr R, that the Mother has a personality disorder which, if true, means there remains a risk that the Mother will remove [X] from Australia.
Having regard to the matters addressed in these Reasons, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of [X].
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Acting Associate:
Date: 16 August 2010
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