Bauer and Steggall - [2010] FMCAfam 1520

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BAUER & STEGGALL

[2010] FMCAfam 1520

FAMILY LAW – Interim parenting orders – father deceased – application to suspend time and communication with paternal grandmother – agreement to therapeutic support and treatment of child.

Family Law Act 1975, ss.61DA, 65DAA, 60CC

Applicant:

MS BAUER

Respondent:

MS STEGGALL

File Number:

PAC 5304 of 2010

Judgment of:

Harman FM

Hearing date:

15 November 2010

Date of Last Submission:

15 November 2010

Delivered at:

Parramatta

Delivered on:

15 November 2010

REPRESENTATION

Counsel for the Applicant:

Mr Shaw

Solicitors for the Applicant:

Anderson Boemi Lawyers

Counsel for the Respondent:

Mr Hazelwood

Solicitors for the Respondent:

F W Ewart & Ewart

ORDERS

Adjourn these proceedings for further mention or directions before me to 9.30 am, 31 March 2011.
Make an order for the appointment of an Independent Children's Lawyer in accordance with exhibit A signed and dated by me today.
In appointing an Independent Children’s Lawyer I note:
(a)There are allegations of psychological abuse of the child;
(b)A notice of abuse has been filed;
(c)There is an intractable conflict between the parties;
(d)The child, [X], is of mature years and alleged to be expressing strong wishes and in the context of extreme conflict;
(e)It is proposed that a non-parent become primary carer reversing a long term arrangement;
(f)Serious allegations of psychological risk to the children are made.
Request that a senior solicitor, preferably and having regard to time constraints with respect to the matter, an in-house advocate, be appointed to represent these children's interests.
Make an order for the appointment of a Part XV expert, Dr R, in accordance with and following orders 3, 4, 5 and 6 of the minute of order exhibit GM2.
Make a non-denigration order in accordance with paragraph 7 of that exhibit.
Make an order in accordance with paragraph 9 of exhibit GM2 to provide for the child to receive therapeutic psychological counselling.
I note that Dr R is at liberty to contact Dr B as the provider of therapeutic assistance to [X] and Dr B is at liberty to provide such information to Dr R as he considers necessary or appropriate and which would not, in Dr B's view, prejudice or undermine any therapeutic relationship he has developed with [X].
Pending further order, I suspend all prior parenting orders with respect to the children, [X] and [Y], and in particular orders made by Sexton FM, 4 April 2007.
Pending further order, the mother shall have sole parental responsibility for the children, [X], born [in] 1999 and [Y], born [in] 2005.
Pending further order, [X] and [Y] shall live with their mother.
Pending further order, [X] and [Y] shall spend time with their paternal grandmother from 10 am until 6 pm each alternate Sunday extending to
7 pm during Daylight Savings school holiday periods. And for the purpose of such time that changeover shall occur at the mother's home.
Pending further order, each party is restrained from allowing, causing or permitting [X] and/or [Y] from attending upon or being interviewed by any person other than:
(a)The independent children's lawyer.
(b)Dr B and Dr R.
(c)Their school counsellor.
The solicitor for each party is to forward to Dr B by fax or email by close of business 16 November 2010 all documents filed by them in these proceedings to date.
Time between [X] and [Y] and their grandmother pursuant to these orders shall commence Sunday, 28 November 2010 and that is deliberately done so it corresponds with Boxing Day.
The paternal grandmother is entitled to telephone and speak with [X] and/or [Y] by telephone between 5 and 6 pm each Monday and Wednesday.
I grant leave to the solicitors for each party and to the Independent Children's Lawyer to issue such subpoena as they consider necessary and appropriate including to the extent it may be necessary leave being granted to issue more than five and provide that prior to issuing further subpoena, the solicitor for each party should consult with the other and the Independent Children's Lawyer to avoid, if possible, duplication of subpoenas.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 5304 of 2010

MS BAUER

Applicant

And

MS STEGGALL

Respondent

REASONS FOR JUDGMENT

These are proceedings for interim parenting orders with respect to two children, [X] and [Y], who are aged 11 and five years of age respectively.
Both children presently reside with their mother and those arrangements are cemented to some extent by orders made by Sexton FM, 4 April 2007.
The parties to the proceedings are [X] and [Y]'s mother, Ms Bauer, and their paternal grandmother, Ms Steggall.
Regrettably, the children's father is deceased having passed away as a consequence of gunshot wounds on 23 November 2005 at which time [X] was six years of age but [Y] was incredibly tiny and only some months of age. Accordingly, she would have no memory or recollection, in a real, lived sense, of her father whereas [X] quite clearly does and continues to and that is not in any way a bad thing.
The proceedings were commenced by Ms Bauer in her own right by application filed on 5 November 2010. She has since retained lawyers to act on her behalf and they appear on her behalf today.
The respondent grandmother has solicitors appearing on her behalf and they appear with her today.
Each of the parties is diametrically opposed as to what they should happen. Ms Bauer, for her part, seeks that the existing orders, at least to the extent that they provide for time and communication between these children and their grandmother, should be suspended. In response to that, their grandmother seeks that the orders should be suspended and that both children should pass immediately to live with their grandmother and spend time with their mother on alternate weekends and other periods of time for special occasions and the like.
When the first set oft proceedings between these parties in the Sydney Registry of the Court commencing 2006, a statement contained in the then applicant paternal grandmother's material read:
Regrettably, Ms Bauer and I were not close during my son's life and since his passing, Ms Bauer has threatened to cut ties with the family.
That has not occurred and indeed orders were made between these parties, as I have indicated, on 4 April 2007 and those orders were made by consent. Those orders included a notation which, though imbued with a spirit of optimism, would appear to be misplaced in that it indicated the parties expect that the children will be raised in a cooperative environment supporting the mother and maintaining the strong links that the children have as part of the paternal family.
Most regrettably, these children have, and in particular the eldest child, [X], has become, it would seem on any reading of the material, enmeshed in the dispute between the various adults around them and those adults extend not only to the immediate parties.
Also in the 2006 proceedings, the paternal grandmother had indicated in her affidavit then sworn:
[X] continues his involvement with the [omitted] being a team that his Uncle [Mr M] coaches.
And otherwise indicates that since his father’s death, [X] had not been spending as much time at the grandmother's home and it referred to and indicated the fairly extensive paternal family which it was sort to continue his relationship with comprising:
His paternal grandparents, my sons and daughters and their partners.
What involvement these children have with their maternal family is not as clear on the material but perhaps that is because it is not an issue of great controversy.
Since the orders were made, difficulties have become apparent and disputes have become very entrenched between these parties. Regrettably, that would appear to be having a fairly profound impact upon [X] in particular. Very much less is said of [Y] in the proceedings. But in relation to [X], there is considerable material from the parties, from other witnesses and from two psychologists, one retained by each party, regarding his behaviour being very unsettled.
That culminated in late October of 2009 with Ms Bauer describing an event that could well be interpreted as an acting out demonstration or possibly something more than that wherein this child has taken a knife, gone to his room and caused his mother, at least, significant concern that he was going to self-harm.
There is also, from the material, clear and unacceptable pressure on this child. Whether that is conscious or deliberate, I do not know, but it is quite clear that this child perceives it. There is reference in the material to his making comments that he wishes to go and live with his grandmother, that he is having difficulties with his mother and it is suggested in a quantity of the material, that there are responses to him that when he is 13 or 14 he can make that decision.
There has been regular ongoing time between these children, and in particular, [X], and his paternal family. That has included alternate weekend time, Tuesday from after school until 8 pm, periods during school holidays, periods for special events, the paternal family attending at school and sporting activities and, more recently, regular contact both on the computer and by mobile phone as a consequence of a mobile phone given to him by his Uncle [Mr M].
The ability for these children and [X] in particular, to then to make contact with his paternal family whilst on one hand greatly to his benefit has also had the impact that whenever a difficulty arises with him and his mother he is very quickly in contact with people who, it is suggested, whilst caring about him a great deal, demonstrate care by going to him and unreservedly siding with him and including by going to him at his mother's home. Ms Bauer perceives that as intrusive and perceives that as causing some great difficulty in undermining her ability to parent effectively.
The re-manifestation for this child, however, (most of the focus of these proceedings being on [X] rather than his younger sister), is that he is becoming psychologically distressed if not disturbed.
Back in 2006 [X] was first taken by his mother but subsequently taken, of more recent times, by his Uncles [Mr R] and [Mr M] and also by his grandmother, to see Ms C, a psychologist and art therapist who has provided a report. She concludes:
I am concerned that the depressive symptoms [X] currently has could escalate if [X] is further disempowered and his wishes not listened to. Conversely, it may be that his wishes are perhaps given emphasis beyond his age and his maturity. That is entirely unclear but what is clear is the impact that his enmeshment in the present conflict is having.
That conflict is referred to on the conclusions of the report as indicating:
Based on what [X] has told me, that there is ongoing conflict between he and his mother and that after the phone message incident that he wanted to leave her care, I conclude that [X] has some depressive symptoms which include anxiety, anger, emotional turmoil, thoughts of self-harm based on what he told me in those last two sessions of the artwork which was consistent with this.
It would seem that the last appointments with [X] are, in fact, quite recent and within the last few weeks, the last session having taken place on 2 November 2010.
Consistent with that opinion as offered by Ms C, is material that is produced by Ms L who, it would appear initially, was engaged by the parties as a family dispute resolution practitioner but subsequently undertook some form of counselling or therapy with the mother and/or [X]. She expresses completely different conclusions as to what should occur. Thankfully neither of them are making the decisions and accordingly, the difference between their conclusions do not matter. She has seen [X] quite recently although I can accept at about the same time as this child was being taken to see the psychologist to whom I previously referred.
Ms L refers to contact being made with a mental health crisis team by [X]'s mother, that she is worried about him, that he had taken a knife from the kitchen and locked himself in his room. He has also been taken to see a GP. Further appointments are organised for the future and a report was made by Ms L to the Department of Community Services although nothing seems to have flowed from that and no doubt once the Department is aware that there are privately funded proceedings on foot between these parties, nothing will come from that.
It suggests, and there is no issue in the reportage of [X]'s views, that he expresses that he wishes to live with his grandmother. It then goes on to refer to the fact that he has made statements to Ms L which are confused, contradictory and unusual.
I formed the view that the language and sentiments expressed by him did not seem to be usual for a child of his age.
The reports of each of those treaters, for want of a better description, are somewhat partisan even though Ms L, in particular, has referred to the expert's guide of conduct.
What this evidence does raise though, is a very real concern that this child is caught in the middle of a very grown up dispute. The grown up dispute made all the more real by his father's demise some years ago and no doubt the fact that this child, to a large extent, is what is left that binds these parties together.
Both parties, no doubt, love him. They both, no doubt, have a very clear view of what is best for him. But, regrettably, their views do not in any way correspond or even enter the same ball park. Each entirely blames the behaviour and the problems now manifest with this little boy on the other's household and the other's family.
The long running nature of disputes between these parties is perhaps clear from the material filed in the 2006/2007 proceedings to which I have referred including the fact that there are notations in orders contained in that file regarding matters such as who is to cut the child's hair. That could, perhaps, reflect hypersensitivity, to quote the words used by counsel for the mother in submissions. It could reflect a complete lack of candour of communication between these parties, both of whom, no doubt, hold and want to see as reality their own view of what is best for this little boy. Regrettably their views are so blinkered that to some extent each tramples under foot the benefits the other might well offer.
These are proceedings which must be dealt with under the provisions of Part VII of the Family Law Act 1975.
The objects provide the underlying philosophical considerations that the Court should have regard to and endeavour to make orders that will achieve those ends. The objects and principles are focussed upon the rights of children and parents or adults.
The objects of Part VII are to ensure 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 their best interests. The provision refers to parents, and in this case it is a singular parent, rather than parental and maternal families. The objects also provide that the Court must ensure that children are protected from physical and psychological harm, that they receive adequate and proper parenting and that parents fulfil their duties.
The principles underlying those objects are that children have a right to know and be cared for by both of their parents, have a right to spend time on a regular basis and communicate on a regular basis with their parents and other people of significance to their care. I am under no doubt whatsoever that the paternal grandmother and, indeed, the great many other members of the extended family are persons significant to these children's care.
The principles also provide that parents should share duties and responsibilities, parents should agree about future parenting and that children have a right to enjoy their culture. There does not appear to be any real issue in these proceedings regarding culture.
The presumption of equal shared parental responsibility does not apply in these proceedings as that is a portion of the legislation which is focussed upon and to some extent must, as a consequence, prioritise the role of parents. The presumption applies only as between parents and not others even though others may have some great and real importance and significance for children.
The orders that were made in April 2007 otherwise provide that the mother have sole parental responsibility and that is consistent with the framing of the legislation in s.61DA as regards the division of that power between parents and the presumption does not and cannot apply.
As the presumption does not apply I am not mandated to consider each of the steps in relation to equal or substantial and significant time as dictated by s.65DAA although I may if I so choose. I am still required to consider though the dual test of what is reasonably practical under s.65DAA(5) as well as what is in this child's best interests as set out in s.60CC.
In relation to practicality, I note that there are some very real concerns in this case. Whilst the parties do not live any substantial distance apart, practicality is not defined by reference purely to physical and logistical matters. It refers to the capacity of parents – or in this case, parties – both presently and in the future to implement arrangements and to communicate with each other and resolve difficulties. I am satisfied, from what I have read, that these parties do not have any present capacity whatsoever to communicate in a real and effective way that will benefit, prioritise and guard this child's best interests.
As regards the impact of an arrangement on the child I have some concern that the arrangement, as it presently stands, is causing matters to come to a breaking point for [X] and regrettably things are at the point that the chain is about to break for this child and I am not prepared to allow that to happen.
The matter certainly requires further investigation and the parties, to their credit, have agreed on this child receiving some therapeutic support and assistance from Dr B and a Part XV report being commissioned from Dr R to expedite that evidence being before the court it also being recommended by the child dispute memo as the preferable course.
In relation to s.60CC and what is best for these children, the primary considerations relate to the need to protect the child from physical or psychological harm and the benefit to the child of having a meaningful relationship with both parents.
I am concerned that this child is being exposed to psychological harm not through any deliberate course of action by either party. I accept that they act not intending that consequence but irrespective of whether they are blind, uncaring or unseeing of the consequences of the pressure cooker in which these children have lived since their father's death that has occurred. Notwithstanding the optimism that was expressed that the children would be raised in a positive environment supportive of their mother and continuing all other relationships the parties have collectively, jointly and severally failed in that regard.
As regards the child's meaningful relationship with both parents, that must, of course, focus upon Ms Bauer. There is some suggestion that things as they presently stand are impacting upon the mother's parenting, the mother's capacity to parent the child and, indeed, the mother's meaningful relationship with [X]. There is no such similar suggestion in relation to [Y].

In relation to additional considerations certainly there is no dispute that clear views have been expressed by [X] to live with his grandmother. However, I do not know, and until there is a report as will be commissioned shortly will not know, what weight to attach to those views particularly having regard to what is inescapable from the evidence, that this child is fully aware of the antipathy and dislike that the various adults surrounding him express and hold towards each other. What is abundantly clear is the support each household gives to wishing him to be in their home and for [X] to hold and express such views.
From the difficulties that have surrounded arrangements it would appear that for some years both parties and other adults have had difficulty in fostering and encouraging his relationship with the other. These are people who, as far back as 2006 and pre-dating the existing orders, do not like each other and do not get on.
The child's relationship with each parent is not the subject of any great weight in interim proceedings. It is certainly clear the child enjoys a good relationship, at least on its face, with all of the adults concerned. How healthy that relationship is in a psychological and pathological sense is unclear and Dr R will assess that.
The willingness and ability of each parent to facilitate a relationship to facilitate a relationship is probably a matter that will assume greater significance in this matter than many others.
It is suggested that Ms Bauer does not support the relationship but by the same token, Ms Bauer suggests that the paternal grandmother does not support her relationship, has sought to actively undermine it and now, at a time when matters have reached a crisis, seeks to have the child passed to live other than with his mother.
The likely effect of a change in circumstances causes me some concern. There is the potential that if, indeed, as is one of the many hypothesis for why things have got to the state they are for this boy, that a move to live with his grandparents would have the effect of isolating and further alienating him from his mother and would have the potential to destroy that relationship by placing him into an environment which Ms Bauer would suggest is somewhat toxic and counter-intuitive to her relationship with the child.
However, Ms Bauer's application seeks to apportion all blame to the grandmother and the paternal family and that to cut off all of those relationships in their entirety is the only way to preserve her relationship.
Certainly change must come for this child. It would appear from the evidence that is available, particularly the myriad of psychologists he has been taken to including the school counsellor who may have some ongoing role of support and assistance, that [X] is at breaking point and is unlikely to have the emotional resources left to project him into pubescence let alone adulthood.
Accordingly, I am satisfied that a change to the present circumstances that alleviates any of the pressure on this child must be to his benefit even though, in the short term, it will impact upon the time he spends with one or other of the parties but not necessarily undermining the underlying relationship.
Practical difficulty and expense looms less large but has some relevance as each of these parties has expressed some lack of willingness to support the other's relationship.
In relation to capacity, I am satisfied that each party is perfectly capable of meeting the child's physical needs but there is, in my mind and from what I have read albeit at an early and interim stage, perhaps a blurring of lines with respect to parental authority which has proved ultimately to be unhealthy for this child.
Whilst it is certainly conducive to this child's ongoing development and well being to have a relationship with and knowledge of and an interaction with both sides of his family – and regrettably he cannot with his father – the level at which that has been set could perhaps, in hindsight, which neither of these parties had in 2007, have set them up to fail.
There is no suggestion the children have any specific cultural or lifestyle issues that need to be taken into account nor are they Aboriginal or Torres Strait Island children.
The attitude each party has demonstrated towards these children is, regrettably, typified by each having a clear focus upon a sense of entitlement and some blinkering towards the impact of their behaviours and, I accept, unconscious pressing of their own agendas upon this child.
There are no real issues of family violence raised as between the parties.
As to whether it is preferable to make orders that will avoid future proceedings that cannot, on one level, be avoided as these are interim proceedings. However, putting steps in train that will provide therapeutic support and assistance for the child may assist in the overall resolution of the matter and I am satisfied that the Part XV order that is consented to by both parties will move the matter forward as quickly as possible. I am also satisfied and note that the Child Dispute Conference memo recommended that an independent children's lawyer should be appointed to assist and case co-ordinate the matter as well as to objectively advocate for this child's best interests and I will so order.
For all of those reasons, I am satisfied that there must be a change. What that change should be neither party agrees. I am not satisfied from what I have read that the long standing arrangement where by these children live with their mother and have, for five years since their father's death, lived solely with their mother, should change.
That then leaves what one does with what has clearly become an unworkable and unhealthy set of arrangements for these children and in particular, [X].
I am not prepared to accede to Ms Bauer's position that I should terminate those relationships altogether until further investigation occurs. What would be clear, however, is that I am not prepared to either substantially change the existing arrangements nor to reverse the arrangements so that these children live other than with their mother and spend only time with their mother.
Indeed, the orders that are proposed in the grandmother's case that these children would spend alternate weekends and half the holidays with their mother suggest to me that, indeed, there must be a tacit acceptance of a good relationship and a perfectly able capacity to meet the child's needs.
I am concerned that the present arrangement is making [X] emotionally unwell. From what I have read, the free access by phone and internet, the coming to the mother's home, the recent provision of the telephone so that there is even more ready, free, open and unrestricted communication is, in the present circumstance where this child needs some serious physical and therapeutic intervention, unhealthy for him and must end to protect his emotional health and his relationship with his one surviving parent.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Harman FM

Date: 2 August 2011