Bass and Bass

[2011] FamCA 727

FAMILY COURT OF AUSTRALIA

BASS & BASS [2011] FamCA 727

FAMILY LAW – CHILDREN - Child related proceedings

Family Law Act 1975 (Cth)

APPLICANT: Ms Bass

RESPONDENT: Mr Bass

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 2801 of 2006

DATE DELIVERED: 13 September 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 9 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

COUNSEL FOR THE RESPONDENT: Mr Givney

INDEPENDENT CHILDREN’S LAWYER: Mr Sperling

Orders

1. The Independent Children’s Lawyer cause to be confirmed appointments with Andrea Davidoff, Clinical Psychologist at 50 Arthur Street, Randwick for Bernard Patrick Bass born 18 August 1997 (“Paddy”) to attend:

   (a)       by himself on:

   (i)15 September 2011 at 3.00 pm and

   (ii)19 September 2011 at 3.00 pm

   (b)       with the mother on:

   (i)22 September 2011 at 2.00 pm

   (ii)26 September 2011 at noon and

   (iii)29 September 2011 at 3.00 pm

   (c)thereafter with such frequency and with or without the mother as the nominated Clinical Psychologist requests in writing to the Independent Children’s Lawyer.

2. The father:

   (a)cause Paddy to be made available for all of the appointments made pursuant to Order 1 by delivering him to the receptionist at the rooms of Andrea Davidoff, Clinical Psychologist 10 minutes prior to the scheduled commencement of the appointment and then immediately leave those premises and not returning until 10 minutes after the scheduled conclusion of the appointment or in the case of the appointments pursuant to Order 1(b) outside the building in which rooms of Andrea Davidoff, Clinical Psychologist are located at the conclusion of the time spent with the mother pursuant to Order 5(b)(i)

   (b)is restrained from having any contact with Andrea Davidoff, Clinical Psychologist other than at the instigation of the Psychologist.

3. The Independent Children’s Lawyer cause to be provided to Andrea Davidoff, Clinical Psychologist a copy of these Orders and this Judgment.

4. The costs of the attendances on Andrea Davidoff, Clinical Psychologist to the extent not otherwise payable by Medicare be paid as follows:

   (a)in relation to all of the attendances required pursuant to Order 1(a), by the father in a lump sum in advance at the time of the delivery of Paddy for the first appointment

   (b)in relation to the attendances required pursuant to Order 1(b), by the mother at each appointment she attends and

   (c)in relation to the attendance required pursuant to Order 1(c), in the first instance by the mother at each appointment she attends but the mother have leave to seek further orders about who should ultimately bear these costs in due course.

5. Pending further order:

   (a)       Orders 3, 4, 5, 6, 7, 9 and 10 made 17 July 2008 are suspended

   (b)       Paddy spend time with the mother as follows:

   (i)at immediately following the conclusion of the appointments made pursuant to Order 1(b) for a period of two hours

   (ii)each alternate weekend on Sunday for a period of four hours from 12 noon to 6.00 pm to commence on the first weekend following 29 September 2011

   (iii)in relation to Order 5(b)(ii) the mother is to collect/return Paddy at the commencement/conclusion of each period of time he spends with her as follows:

   A.in the event that Paddy is attending school on the relevant day, from/to Engadine High School and

   B.otherwise from the car park of the McDonald’s Restaurant at 1264 Princes Highway, Engadine.

   (c)Paddy live with the father at all times that Paddy is not spending time with the mother pursuant to Order 5(b).

1. Pending further Order notwithstanding anything set out above:

   (a)Paddy spend time with the mother from 4.00 pm Christmas Eve until 4.00 pm Christmas Day, the mother shall collect Paddy from the car park of the McDonald’s Restaurant at 1264 Princes Highway, Engadine at the commencement of this period and the father shall collect Paddy from the mother’s residence at the conclusion of the period

   (b)Paddy live with the father from 4.00 pm Christmas Day until 4.00 pm Boxing Day.

2. Pending further Order notwithstanding anything set out above, during any period that Paddy is a patient in hospital overnight (save during any period he is in surgery or intensive/post-operative care):

   (a)the mother shall be entitled to the exclusion of the father to spend time with Paddy from 3.00 pm until 7.00 pm and

   (b)the father shall be entitled to spend time with Paddy from 7.15 pm until 2.45 pm the following day

   provided that the mother shall notify the father by SMS Text message from time to time of any period of time provided for in Order 7(a) that she will not spend time with Paddy and the father shall be entitled to spend that time with Paddy instead (but he shall arrive 15 minutes after the time the mother said she would be leaving and leave 15 minutes before the time the mother said she would be arriving).

3. The father do all acts and things and sign all documents necessary to keep the mother informed at all times in a timely manner in relation to the provision of or proposed provision of medical/nursing care to Paddy including but not limited to:

   (a)copies of all documents provided to him in relation to the same as and when he receives them

   (b)notice of any appointments in relation to the same, as and when he becomes aware of them including details of the proposed date, time, place and attendees

   (c)forthwith the substance of any attendance by a medical practitioner on the father in relation to the same

   (d)the provision of all consents and authorities to any medical practitioner, nurse, carer, administrator involved with the provision of medical care to Paddy to provide to the mother all information in relation to Paddy.

4. The father forthwith cause to be provided to the solicitors for the mother:

   (a)the address, attendees, reason for, date and time of each attendance by Paddy on a medical practitioner in the period 1 January 2011 to date and

   (b)a summary of what was said and what medical procedures were undertaken during the course of each attendance by Paddy on a medical practitioner in the period 1 January 2011 to date.

IT IS NOTED that publication of this judgment under the pseudonym Bass and Bass is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2801 of 2006

Victoria Anne Bass

Applicant

And

Harvey Burton Bass

Respondent

And

Legal Aid NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court are proceedings for interim parenting orders in an application for parenting orders set down for hearing for five days in February 2012 relating to a child known as Paddy, born on 18 August 1997, presently aged 14 years.

Background Facts

1. Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.

2. The father was born in February 1947 and the mother was born in April 1961.

3. The parties were married on 5 May 1984.

4. In 1985 their child Rose was born.  In 1987 their child Harrison was born.  In 1989 their child Lachlan was born.  In 1992 their child Campbell was born.  In 1994 their child Katie was born.  The subject child Paddy was born on

   
   

   18 August 1997.

5. The parties separated under the same roof in, it is asserted, April 2004.

6. In July 2004, the child Paddy was diagnosed as having a mild intellectual disability.

7. In early December 2005, the mother and the children moved out of the former matrimonial home.

8. The marriage of the parties was dissolved by decree made absolute on

   
   

   18 December 2005.

9. In February 2006, an interim Domestic Violence order was made protecting the mother from the father.

10. In July 2008, the parties in these proceedings entered into consent orders which I will not set out but which should be read in conjunction with this Judgment.  Those orders established a regime for the care of Paddy.  The parties were to have equal shared parental responsibility for the child and the child was to live with each of the parties in a manner defined in the orders.  During school term time, that was on a week-about basis with each parent with the school holidays to be largely shared.

11. The orders permitted of the possibility of either parent removing the child from Australia during a school holiday period for a period up to but not in excess of three weeks on conditions set out in the order.

12. Provision was made for the parties to have access to a fund of some $75,000 held in a child maintenance trust in the event of a wrongful failure by a removing party to return the child to Australia in accordance with the orders.

13. At the date of the hearing the child was enrolled in a special class for intellectually disabled children at Engadine High School.

14. Save for an interview with a Court appointed expert, a Dr Selig, the wife has not seen the child Paddy since December 2010.

15. The mother asserts that the child lived with her predominately until February 2010 but spent each weekend and all school holidays with the father.  Since February 2010, the child has lived with the father and has seen the mother occasionally and she asserts with difficulty.  The mother asserts that the child missed 50 days of schooling.  The child has spent a number of holidays in Thailand and some of those have required the child to be taken from school for that purpose.

16. Paddy has the four siblings set out above whom, the mother asserts, are estranged from the father.  Without ascribing any reason for that, there seems to be some corroboration of that view.  Paddy does not have contact with them.

17. Paddy is scheduled to undergo major surgery in two sessions over the next seven months.  His treating surgeon is a Dr Solomon.  The first of such sessions of surgery is booked for 4 October.  There will be a significant period, it seems, of recovery from that operation and during that time the child appears advised not to travel.  The doctor, however, says that there is no difficulty in the child travelling preoperatively.  The father desires to take the child to Thailand for a period from 16 to 30 September 2011.

18. The father has taken the child to Thailand on a number of occasions before.  He has, it seems, a Thai wife and owns property developments in Thailand.  The father asserts from the bar table that he has significant assets in Australia to a value of about $5,000,000 but does not provide affidavit evidence of the nature and extent of those assets and any liabilities associated with them.

19. The father has, however, a history of going to and returning from Thailand with the child.  The mother asserts that given the nature of the recommendations set out in the untested independent expert’s report of Dr Selig dated 1 August 2011, there now exists a real possibility of the father not returning from Thailand with the child.  That report, it would be fair to say, was supportive in large measure of the re-establishment of the relationship between the child and the mother and the child and his siblings.

20. The conclusions of the expert are untested and the assumptions of fact that she relies on are in issue in part and the Court is not at this time in a position to make findings on those issues.

21. The Court finds, however, on the evidence of the father’s past behaviour and his continuing association with Australia that it is improbable that he will decline to return to Australia.

22. It is noted that the expert recommends a continuation of the child’s overseas trips albeit that they are limited to school holidays.  It is noted that the mother has asserted to the child an absence of opposition on her part to the child going to Thailand for holidays.

23. It is the view of Dr Solomon that the child would be benefited by the support and approval of his mother in the surgical proceedings which he proposes be undertaken.  That surgery is, he says, significant and will need to be undertaken in two steps;  the second occurring after the recovery of the child from the first operation.  He says that the child will seek the comfort and support of his parents.  He disclaims any expertise as a psychologist and appeared to be aware of the existence of difficulties between the parents .  He nevertheless adhered to his view that the presence of the mother was desirable for the patient’s benefit.

24. The doctor says that the child will be in pain following the first operation.

25. He says that preparation of the child for the operation should include the mother seeing the child pre-operatively as well as post-operatively.

26. It seems clear from Dr Selig’s report that she believes that given the antipathy which has hitherto been demonstrated by the child that the continuation of a relationship between the child and his mother will need to be supported by some psychological therapy.  She notes, however, a demonstration by the child of, in her assessment, affection for the mother in their joint interview.

27. There is little time before the proposed operation in which therapy could be meaningfully undertaken.

28. In order to facilitate the adoption of the recommendation of the child’s treating surgeon and in conformity with the view expressed by Dr Selig, the mother proposes that the child undergo therapy with a psychologist during the period from 15 to 29 September in two blocs:  one of two consultations alone and three with herself being present.  There is a proposal for continuing involvement in therapy as required by the therapist.

29. She seeks orders for interim contact between herself and the child to the hearing of the matter which increase from two hours to weekends from Friday to Monday.  She also seeks orders which will permit of her attendance on the child at different times to the father during his hospitalisation for the operative processes.

30. The father points to the untested nature of the report and the clear and unresolved issues of fact on which it is based and says that the Court should be cautious of taking a step too far along the lines of its recommendations until such time as that testing can take place.

31. He further points to the mother preventing the child from going overseas on another occasion and the distress that he says that that engendered in the child and the child’s antipathy to the mother as a result.

32. He points also to the constant reassurances by the mother of the child of her willingness to permit the child to go to Thailand.  He says that a betrayal in effect of those assurances will take place if the child is again prevented from going overseas and that that will create even greater antipathy.  The child, he says, would enjoy a trip to Thailand as he has in the past and given that he will have to undergo continuing surgery the trip will provide a welcome respite for the child.

33. Dr Selig, whilst not opposing holidays during school holiday time in Thailand, reports that the child in fact did not wish to be taken from school (as would be in part the case if the father’s proposal was accepted) and away from his friends.  He appeared to enjoy and gain pleasure from his schooling.

34. The father accepts that the surgery which is to proceed should proceed as soon as possible but says that the time between now and when it is undertaken should not be employed in the manner suggested by the mother.  It is noted that some part of the proposed trip to Thailand will take place in the child’s school holidays.

35. These are interim proceedings and the evidence is untested.  The Court needs to act cautiously but takes the view that the treating surgeon’s assessment of the child’s need in relation to the surgery to be undertaken coupled with the rest of the evidence suggests that the child having optimum care and support in relation to his surgery should be given the priority in the satisfaction of his needs.

Relevant Law

Legal principles

1. The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.

2. I am required to 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 doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).

3. I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the child and the principles underlying it.

4. I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.

5. Section 61DA(1) requires that:

   “…  When making a parenting order in relation to a child, 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 for the child.”

   Subsection (4) provides as follows:

   “…  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.”

6. Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent, where the Court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

1. In the majority of marriages it is axiomatic that children benefit from the input of both their parents.  The facts in this case are not yet found but there seems to be indeed a long history of conflict between the parents.  Each of them attributes some different cause or causes for the conflict and the Court is not in a position to make at this stage findings in relation to it, but it is concerning to the Court that the conflict may be so entrenched that establishing a meaningful relationship between this child and each of his parents may become so difficult a task as to render this one of those rare cases that the goal might have to be abandoned in the interest of removing the child from continuing conflict.

2. It has however not yet reached that point and the Court is of the view that some limited contact coupled with therapy should be tried.  It does not propose at this stage to make orders which go beyond that without considering the outcome of the first steps in process.  To do so on the history of this matter would be

   
   

   ill-considered.

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

3. There is conflicting evidence in this case as to whether this child has been subject to violence from his parents or his siblings.  There are complaints that certainly there has been violence directed toward the mother by the father.  There are complaints of coaching of the children in an attempt to alienate them from their mother and there are claims of parental disinterest and abandonment.  So many of these issues as will be necessary to resolve will be dealt with in due course.  For the time being the Court takes the view that the orders it makes are less likely given the independent evidence to cause the child harm than either those proposed by the mother or the father.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. This child has expressed in the past, it is said, views which are not supportive of a continuing relationship between himself and his mother.  It is asserted that the expression of those views is on the one hand a genuine expression of views formed perhaps on a reasonable basis and on the other hand simply a parroting of words indoctrinated into the child as a result of a coaching process.  The issue will need to be explored in due course but the Court does note the

   
   

   non-verbal expression of view by the child of the mother in the presence of

   
   

   Dr Selig and notes her interpretation of that.

   (b)the nature of the relationship of the child with:  (i) each of the child’s parents;  and (ii) other persons (including any grandparent or other relative of the child)

2. There appears to be no doubt that this child has a warm and loving relationship with his father.  His relationship with his mother is yet unable to be determined in full.  It seems that it has on the surface at least been antipathetic or hostile.  He has had difficulties with his siblings who are aligned with his mother.

   (c)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

3. One would have to say on the evidence thus far that there has not been demonstrated that degree of willingness and ability on the part of this child’s parents to encourage a relationship between this child and his mother or his siblings and their father.  The findings on these issues will of necessity have to await a final hearing.

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i) either of his or her parents;  or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

4. There will be a change as a result of the orders the Court proposes to make.  The child will have exposure to his mother to whom he has demonstrated at times a dislike and at other times (particularly with Dr Selig) some affection.  The hope of the Court is that as a result of its orders the child might feel free to communicate with his mother in a productive way and that he might have the benefit of his mother’s support whilst he is undertaking and recovering from significant surgery.  It is hoped that he will have the benefit of the love of both his parents (and perhaps his siblings) at a time when he will need it.  As to the disappointment which the child might experience in relation to his trip to Thailand, there will be times more convenient for the child to travel there than now when he needs operative procedures which in the words of the doctor are better undertaken sooner rather than later.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. There are no practical difficulties or expenses which cannot be borne in this case to enable the child to spend time with each parent to the limited extent proposed at this stage in the orders to be made.  The child will recommence hopefully a positive relationship with his mother and have the continuing support of his father.

   (f)the capacity of:  (i) each of the child’s parents;  and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

2. There is significant issue as to the capacity of each of the parents to provide for the needs of the child emotionally.  It seems that the child is adequately supported intellectually having regard to his disability in an appropriate form of schooling.

   (g)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

3. This child has an IQ rating of 70 but within that capacity is apparently functioning.  There are allegations of immature behaviour or perhaps overly mature behaviour on the part of the child in the form of sexualised behaviours which will need to be explored in due course.  It is not the view of the Court that the orders it proposes to make will expose the child to an unacceptable risk of harm.

   (h)if the child is an Aboriginal child or a Torres Strait Islander child: 
   (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and (ii) the likely impact any proposed parenting order under this Part will have on that right

4. There is no evidence that the child is an Aboriginal or Torres Strait Islander child.

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

5. There are a multitude of issues requiring examination in relation to these matters at a final hearing but in the meantime it is noted that the father has been the primary supporter of the child for some time.

   (j)any family violence involving the child or a member of the child’s family

6. There are unresolved allegations of violence.  A hearing will be required to resolve them but the situation of the child is now such that that lack of resolution should not operate to prevent the limited orders proposed being made.

   (k)any family violence order that applies to the child or a member of the child’s family, if:  (i) the order is a final order;  or (ii) the making of the order was contested by a person

7. There was an interim family violence order made.  There does not appear to be evidence of any final order having been made.

   (l)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

8. One could always hope but such is the nature of this conflict that further proceedings are quite possible no matter what order is made.

   (m)any other fact or circumstance that the court thinks is relevant

9. The court does not take the view that extended time with the mother should be ordered absent some indication of the success or otherwise of the limited orders proposed.  If the relationship between the mother and the child is positive as a result of these orders then some further extension of them might be considered.  The attitude of each of the parties to a sensible arrangement in the event that that was the case would of course be a matter to be taken into account in a final hearing.

Section 60CC(4) & (4A)

1. I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.

Balancing of all considerations under Section 60CC and the defined issues

1. Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of this child for the reasons specified above.

Section 61DA

1. This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies.  The section requires the Court to presume that it is in the child’s best interests for the parents to have equal shared parental responsibility for the child.

2. The presumption does not apply where there has been family violence.  In this case there has been family violence as has been set out earlier.

3. Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child.

4. The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the child’s best interests.

5. In this case there is an existing order for joint parental responsibility and the Court will not on an interim basis make any change to such order since the whole of the facts are not yet tested in this case and in any event neither party seeks such change and that order will continue.

Section 65DAA

1. This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.

2. The order I propose to make will not afford the parties equal shared time with the child and I find that, at the present time and on an interim basis given the untested nature of the assertions made in this case, to be in his interests.

The Orders to be made

1. I therefore propose to make the orders in relation to parenting as set forth above.  In making those orders I have departed from a number of the requests made by the mother.  I will not as requested by the mother prevent communication between the father and the psychologist providing that such communication is at the request of the psychologist.  It may be necessary for the therapist’s therapy for such communication to take place.  It is intended by the Court to reduce somewhat the hours to be spent by the mother with the child to better accord with the hours prescribed for initial weekends for the present time.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on

13 September 2011.

Associate:  M. Rankin

Date:  13 September 2011