Benson and Higgins

[2016] FamCA 778

FAMILY COURT OF AUSTRALIA

BENSON & HIGGINS [2016] FamCA 778

FAMILY LAW – CHILDREN – Parenting orders – Whether the child should spend increased time with the father – Whether the father’s mental health compromises his parenting capacities – Whether the mother is capable of facilitating a meaningful relationship between the father and the child – Where the father suffers from a mild Bipolar Disorder – Where the mother has sought to discourage a relationship between the child and father.  

Family Law Act (1975) (Cth) ss 4 and 65DAC

APPLICANT: Mr Benson

RESPONDENT: Ms Higgins

INDEPENDENT CHILDREN’S LAWYER: Patrick Dooley

FILE NUMBER: BRC 10827 of 2007

DATE DELIVERED: 14 September 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 13 and 14 May 2015

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McDiarmid

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Dooley
Dooley Solicitors

Orders

1. That all previous parenting orders be discharged.

2. That the child, B born … 2003, (“the child”) shall live with the mother.

3. That the child shall spend time with the father as may be agreed between the parties, but failing agreement:

   (a)During the school term, each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday commencing on the first weekend of each school term;

   (b)In the Christmas school holidays:

   (i)From 5.00 pm Christmas Day until 5.00 pm on New Year’s Day; and

   (ii)From 9.00 am on 14 January until 5.00 pm on 21 January;

   (c)In all other school holiday periods, for the first week of the holidays commencing at 9.00 am on the first Saturday of the holidays and concluding at 5.00 pm on the following Saturday;

   (d)The child is to be collected by the father from the mother at the commencement of the time she spends with him from outside the door of the … Convenience store situated in J Street, Suburb I and returned by the father to the mother at the conclusion of the time she spends with him at the same location.

4. That the father shall have telephone communication with the child between 6.00 pm and 6.30 pm every Wednesday evening, with the father to call the child on a telephone number to be provided by the mother and with the mother to ensure that the child is available to take the call and is afforded privacy during the call.

5. That the mother shall have telephone communication with the child between 6.00 pm and 6.30 pm on any Wednesday evening the child is with the father during school holidays, with the mother to call the child on a telephone number to be provided by the father and with the father to ensure that the child is available to take the call and is afforded privacy during the call.

6. That the mother shall have sole parental responsibility for making decisions on all “major long-term issues” (as that term is defined in s 4 of the Family Law Act1975 (Cth) (“the FLA”)) in relation to the child, save that the mother shall, prior to making the sole ultimate decision about any such issue:

   (a)Use her best endeavours to advise the father in writing of the decision intended to be made;

   (b)Seek the father’s written response in relation thereto;

   (c)Consider by reference to the child’s best interests any such response received from the father prior to making any such decision; and

   (d)Advise the father in writing as soon as reasonably practicable of her ultimate sole decision.

7. That the father is at liberty to attend parent and teacher interviews and to speak directly with the child’s teacher and school principal concerning the child’s academic progress and school attendance.

8. That the mother shall maintain the father as the child’s father and emergency contact on the child’s school records.

9. That the mother shall notify the father if the child does not attend school on the day that such non-attendance occurs and the reason for such non-attendance.

10. That each parent shall promptly notify the other parent if the child suffers an injury or illness requiring hospitalisation or medication whilst in his or her care, and each parent shall be at liberty to speak directly to any doctor who the child has seen; the name, address and telephone number of the doctor who has treated the child in hospital or prescribed the medication also to be provided by the parent who had care of the child at the time of being seen by the doctor, to the parent who did not.

11. That the father shall continue to follow the recommendations, advice and prescriptions of his psychiatrist, Dr K, or other treating psychiatrist he is seeing at any time.

12. That the father shall keep the mother informed of his residential address and telephone number.

13. That the mother shall keep the father informed of her residential address and telephone number.

14. That the Independent Children's Lawyer be discharged.

15. That pursuant to ss 65DA(2) and 62B of the Act (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Benson & Higgins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10827 of 2007

Mr Benson

Applicant

And

Ms Higgins

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. B (the child) was born in 2003 during the marriage of her parents that broke down in early 2006. She is now almost 13 years old and her parenting has been the subject of serious disagreement between her parents since their relationship ended. Indeed, the child’s parents barely communicate and have been litigating about parenting orders in this Court and the Federal Circuit Court for nine years now.

2. Final parenting orders were first made in June 2009 after a trial. Soon thereafter, difficulties with compliance emerged and proceedings were commenced again. Another trial took place in early 2013, but only interim orders were made by the trial Judge at the conclusion of that hearing. Those orders included an order conferring sole parental responsibility for the “major long-term issues” (see the definition of that term in s 4 of the Family Law Act 1975 (Cth) (“the FLA”)) in relation to the child on the mother, as well as orders providing for the child to live with her mother and to spend supervised time with her father each alternate weekend from the Saturday morning until the Sunday afternoon.

3. In October 2013, further interim orders were made that discharged the requirement for the child’s time with her father to be supervised and also provided for the child to spend some time with her father during her school holidays.

4. Still unable to agree on the frequency and circumstances of the child spending time in her father’s care, the parents took the matter to trial before me in May last year. At that trial, both of the parents appeared without legal representation. However, the Court was fortunate to be assisted by an Independent Children’s Lawyer (“ICL”) and counsel he had instructed to appear for him. As well as hearing evidence from the parents themselves, the Court also had evidence from a Family Consultant who had seen the family and prepared three family reports over the years since 2011 and from a psychiatrist who had been treating the father for several years.

5. The parents’ continued disagreement centred totally around the time that the child is to spend with her father. The mother wanted the child’s time with her father to be cut back to a short visit with him on Saturday mornings, whilst the father wanted it increased so that she was with him from after school on Friday to Sunday afternoon each second weekend, but also for some time after school each Wednesday. He also wanted to maintain the school holiday time she spent with him.

6. At the conclusion of the trial, the ICL advocated for the then existing arrangements for the child’s time in her father’s care to remain in place on a final basis. I reserved my decision. Due to commitments to thereafter hear and determine many other similarly complex disputes and to write judgments outstanding in many matters previously heard, I was unable to give judgment in this matter before now. In the meantime, the parents came before me again after some further parenting difficulties and disagreements emerged during the 2015-2016 Summer school holidays. I determined that fresh dispute at the time and made it clear to the parents that the existing interim orders continued to govern their parenting arrangements for the child whilst my judgment remained reserved.

7. Again, before I could finalise this judgment, scheduled long leave interrupted my capacity to have it determined. I have recently returned to work and have been able to finally attend to the matter. I regret the fact that it has taken so long to deliver judgment and provide the parties with my final orders. I understand that delay in the delivery of judgment in parenting disputes must add to the anxieties and concerns of parents and can only hope that with this judgment the child’s parents may be able to get on with their lives and their co-parenting of their daughter with certainty and a renewed determination to continue to act in the child’s best interests at all times when dealing with each other and with the child.

The father’s health and the mother’s actions

1. From the mother’s perspective, the parenting dispute is centred upon an asserted belief that the father’s mental health compromises his parenting capacities to such an extent that the child’s best interests are served by spending a very limited amount of time with her father on Saturdays only. From the father’s perspective, the dispute is centred upon his perception that the mother simply does not value the existence of a meaningful relationship between the child and him and is simply blocking his efforts to develop and maintain one.

2. The father is currently 45 years of age.  At the time of the trial he had been under the care of his treating psychiatrist, Dr K, on a regular basis for eight years. The doctor gave affidavit and oral evidence for the trial, reporting that the father has Bipolar Disorder, “at the mild end of the spectrum”. The evidence showed he has had it since the late 1990’s, before his relationship with the mother commenced. The disorder’s impact upon him is said, at least by the mother, to have played a major part in the breakdown of the relationship between the mother and the father.

3. After the couple separated, the father had great difficulty in putting in place any time with their little girl. The mother maintained that this was always because of her concerns for the child’s wellbeing having regard to the father’s mental health. However, in his Reasons for Judgment delivered 11 March 2013, Justice Bell of this Court said “the mother has displayed a history of attempting to alienate the child from the father”. Whilst it is quite understandable that the mother would worry about the child, knowing that the father suffers from a mental health disorder, I, too, like Bell J, became satisfied that the mother has acted over the years to discourage the child’s relationship with her father and has made it more difficult for him, particularly with his illness, to maintain and develop a meaningful relationship with the child.

4. Against the mother’s views of the father, Dr K’s expert opinion was quite clear. In a 2012 report, he expressed the opinion that should the father maintain his regime of medication, he was quite capable of looking after the child. In a 2013 report, Dr K expressed the opinion that the father had remained stable and free of “any significant signs of mental illness” since the previous report, a fact he attributed to the father’s ongoing compliance with his medication regime. The father takes Epilim, a medication said to be “effective for Bipolar Disorder”.

5. That 2013 report had been written by Dr K after Bell J had expressed concern over the father’s admission at the 2013 trial that he experienced hearing voices. In that report, Dr K set out in some detail his assessment of this issue and gave a careful and considered opinion for the Court’s benefit. Significantly, Dr K expressed the following opinion then:

   …the auditory hallucinations are not of a form or content to alter his behaviour and treatment of the child. He does not have command hallucinations instructing him in a psychotic manner. Voices have never instructed him or controlled him in any way with respect to his daughter the child.

6. Dr K also said in that 2013 report that the father has a positive attitude to medication and accepts his diagnosis and the need for ongoing treatment. The doctor said then that the father’s prognosis was good.

7. Just before the trial last year, Dr K prepared a further report. The doctor expressed the view that the father had again “remained free of any signs of mental illness since [the 2013 report] with no abnormal mood states or psychotic symptoms”. The doctor did acknowledge, though, that the father had been experiencing general stress symptoms as a consequence of his being involved in the parenting litigation, but said that they were not associated to the Bipolar Disorder. Dr K said the father’s attitude to, and compliance with his medication regime remained good and that he was seeing him every four to eight weeks “dependent on need”. Once again, he said the father’s prognosis was good. The doctor concluded by saying that he has seen nothing that has raised any concerns that the father does not “grasp the requirements of being a father and parent”. In his oral evidence at the hearing, the doctor also said that nothing that the father had talked to him about has given rise to any concerns about the appropriateness of the activities he engages in with the child. The doctor also said that he expected the father’s capacity to parent the child to continue to improve.

8. Of course, the trial was difficult for each of the parents as they were both unrepresented and, as such, they had to directly cross-examine each other. In her cross-examination of the father, the mother concentrated on issues surrounding the appropriateness of various facets of the father’s parenting, clearly asking questions arising from information apparently sourced from the child herself.

9. The father made appropriate concessions and acknowledged some difficulties that present from time to time in his relationship and interaction with the child when she is with him. Of particular concern, however, was the father’s evidence about the child’s diet when she is with him. He conceded struggling with being able to balance the child’s needs for a sensible, healthy diet with her desires to eat unhealthy food. By way of example, he told the Court that on one of the weekend visits approximate to the trial, the child had eaten child-specific packaged hamburger meals from a well-known fast food outlet on three occasions over the two days. That is hardly acceptable from any perspective and the father acknowledged that, asserting that giving in to the child was easier than arguing with her and better than her eating nothing.

10. Having regard to all of the evidence, including the family reports, Bell J’s reasons for his judgment in 2013 and the mother’s evidence, as well as her presentation each time she has appeared before me, I am quite satisfied that the mother has developed a very strong relationship of alignment with the child and that she does little to promote and encourage the child’s relationship with her father. Indeed, I formed the impression that the mother is satisfied to hear information from the child that reinforces her position that the child should not be spending time with her father, such as the information about the food she eats or does not eat when she is with him. I also formed the impression that the mother would most likely do little to try to shape, influence or modify the child’s behaviour in any way that might make things easier or better for the child when she is with her father. For example, I consider it would be relatively easy for the mother, who I consider is very influential in the child’s life, to positively discourage her from asking repeatedly for fast food when with her father and to positively reinforce the father’s efforts to have the child eat healthier food when with him. I am satisfied that the mother does not do that because she is not truly supportive of the child spending time with her father.

11. The evidence the Family Consultant, Ms L, gave of her interaction with the child, in my opinion, reinforces my satisfaction that the mother does not assist the process of the child maintaining a good relationship with her father. When Ms L last interviewed the child, it was in 2010 and she was only 10 years old, and Ms L reported the child speaking negatively about her father who she described as “annoying”. The matters the child is reported to have complained about though, in my assessment, were fairly trivial and apparently blown out of proportion by her. Ms L expressed the opinion that they were matters that “essentially derive from differences in [the parents’] parenting styles, with [the mother’s] appearing more flexible”. I formed the impression that Ms L also considered the matters complained of to be relatively trivial. She clearly also considered, just as Bell J found, that the child is capable of manipulating information and situations out of loyalty to her mother or to simply get what she wants.

12. Ms L also expressed the opinion that the relationship dynamics between the parents do not assist, as a poor pattern of non-communication between them has developed, and that makes it far more difficult for the mother to contextualise the information that the child relays to her. Consequently, the mother is more likely to accept it as true, when it may not be.

13. Nevertheless, Ms L acknowledged that the father and the child have not shared a close relationship and that there had been “some challenges”. Ms L opined, with expressed empathy for the father’s position, that the child might very well find her father a bit too intense and might seek to distance herself from him. Ms L, in her 2014 report, expressed the conclusion that the child’s best interests would be served by providing for her time with her father to be as the interim orders made by Austin J subsequently provided; namely, as they are now.

14. As I have stated, that is the position that had been in place for at least six months at the time of the trial.  When asked questions about this issue at the trial by counsel for the ICL, Ms L expressed the view that the arrangement that was then in place did appear to be working and that the child had been going and spending that time with her father. She considered there was no real need to change it, as such. I accept that Ms L’s opinion was correct.

15. None of the evidence persuaded me that the mother’s position that the child’s time with her father should be reduced to only a few hours on a Saturday was in the child’s best interests. On the other hand, neither did the father’s position that the child’s time with him should be increased attract me as being in her best interests. A change that increases the child’s time with her father on the weekends would significantly increase the risk, in my judgment, of the child’s resistance to going to spend time with her father at all. I also consider that obliging the child to spend Wednesday evenings after school with her father would do the same.

1. I do remain satisfied however, just as Ms L opined, that it is in the child’s best interests to have orders in place that oblige her to spend alternate weekends from Saturday morning until Sunday evening in her father’s care. Despite my findings about the mother’s attitude to the father and her apparent unwillingness to promote the father-daughter relationship in a meaningful way, it is not a case where I could consider it in the child’s best interests to move her to live with her father or to spend more time in his care. She is too old and too closely aligned to her mother for that to be good for her. That said, I consider that for the child to have an opportunity to know her father and to continue to maintain and develop her relationship with him as she matures into an adolescent and a young woman is extremely important to her growing sense of identity and emotional well-being. At this stage, I have no reason to consider that the child and her father should not have the opportunity to experience and fashion their father-daughter relationship through these years in the child’s life that are so significant in the development of an adult person, namely, the teenage years.

2. I am satisfied, particularly on the evidence of Dr K, that the father’s mild Bipolar Disorder is well enough managed by him so as not to interfere in his capacity to parent appropriately and to respond adequately to the child’s needs as they arise. Whilst I accept that the child and her father face difficulties from time to time when together, I am satisfied that the child is of an age where her own sense of well-being will permit her to take steps to meet any immediate and pressing needs that might be problematic if left entirely in the hands of her father.  I am also cautiously optimistic that the mother, caring as she does, ultimately, for her daughter’s well-being, will begin to take appropriate steps to help shape the child’s behaviour around matters of difficulty such as her diet when in her father’s care.

3. I very much hope that the mother begins to appreciate that the child’s emotional well-being as a teenager and a young woman in the future depends, critically, on not only the quality of the relationship she has with her mother but also on the quality of the relationship she has with her father. In appreciating that, the mother will no doubt begin to do her utmost to encourage and promote a meaningful relationship between the child and her father.

4. I very much hope also that the father realises or comes to appreciate very quickly that parenting young teenagers as they grow to adolescence and towards adulthood requires a great deal of patience, understanding and flexibility on the part of a parent. As teenagers increase in their independence, naturally their relationships with their parents change and good parenting involves acknowledgment of that and knowing when to be flexible and considerate and when to be firm. The unavoidable rigidity of FLA parenting orders cannot always simply be expected to be the appropriate means of shaping a meaningful relationship between a parent and a teenage child. I am confident that as the father gains some of his own emotional security in the knowledge that his relationship with his daughter will endure that he will understand that.

5. The father’s evidence at trial was that he was obtaining work in his profession albeit on a supply contract basis. That is a very positive development. He was also living in residential circumstances in Brisbane where, he said, the child had her own room and the attendant privacy therewith that a young teenage girl should have. The father has a history of changing residences fairly frequently and although he assured the Court he was looking for a place of his own to buy, the parenting orders I will make will provide for overnight stays to be conditional upon the father living in premises where the child is accommodated overnight in her own room. If he cannot ensure that, he will have to take her home to her mother’s place.

6. Despite the difficulties that emerged in the last Summer holidays when the child ran off from the father at a shopping centre and eventually was returned to her mother’s care, I consider, as I did when that matter came before me after that event, that the school holiday time, reasonably limited as it already is, should remain in place. As I said then, I am confident that the mother has the capacity to encourage the child to realise that such conduct is neither sensible nor safe and to discourage her from acting like that again in the future.

7. All of the other evidence I heard about the school holiday time in the father’s care persuaded me that the father carefully plans those times so as to be enjoyable, entertaining and educational for the child. I accept such visits are in her best interests and should continue.

Parental responsibility

1. The father did not propose any change to the existing provision of sole parental responsibility for the child to the mother. Neither did the ICL. The weight of the evidence satisfies me that is the correct approach. The father and the mother do not communicate well, if at all, and could not appropriately discharge the obligations of a shared parental responsibility order, particularly given the requirement for consultation and joint decision making that s 65DAC of the FLA mandates. Nevertheless, I consider that the mother should advise the father in writing when she is proposing to make a decision about a major long-term issue in the child’s life (as that term is defined in s 4 of the FLA) as to the decision she proposes to make. She should also seek his written views about the decision and consider them before making the decision and then let the father know in writing as soon as practicable, after she has made the decision, of what the decision was.

Other miscellaneous parenting issues

1. The father proposed that the child transition from one parent’s care to the other parent’s care outside a particular shop in a particular street in Suburb I. As the mother was, at least at the time of trial, living closer to that particular location than the father was, and the mother put up no real opposition to that proposal, I see no reason not to make such an order.

2. Consistent with her arguments that the child’s time and communication with the father be reduced, the mother argued that the one telephone call a week between the father and the child provided for in the existing orders be done away with. At the same time, she asked for an order that if the child is to continue spending time with the father during school holidays that she be permitted to call the mother during that week. Whilst I have no difficulty with the latter of those proposals, I was not persuaded, despite there being some evidence of some issues surrounding the child allegedly speaking to the father on speaker phone, that the one telephone call per week between the father and the child should cease. The ICL proposed it continue. My orders will provide that it does.  

3. The ICL submitted that the father should be entitled to attend parent-teacher interviews at the child’s school and to be able to speak directly with the child’s teacher and school principal about the child’s education. The ICL also submitted that the father’s name should be maintained on the child’s school records as her father and an emergency contact. I accept that those matters would be in the child’s best interests in this matter. The father did have some legitimate concerns, supported by education records, about the child’s school attendance and academic performance. Indeed, the ICL submitted that the Court should order the mother to inform the father if the child does not attend school on the day such non-attendance occurs and the reason for that. The school attendance records bear out, in my judgment, the need for that as it will provide some additional accountability for the mother in circumstances where it appears she has been only too willing to let the child stay home from school when she wanted to.

4. I also accept the ICL’s submissions that the parents should keep each other informed of their respective residential address and phone number. I consider they should also provide each other with an email address, if they have one.

5. Finally, I will also make an order, as sought by the ICL, for the father to continue to follow the recommendations, advice and prescriptions of his psychiatrist, Dr K, or any other treating psychiatrist he attends. I expect and accept that he intends to do that anyway, but will order it in any event, particularly to provide additional comfort to the mother in this regard.

6. I make the orders set out at the commencement of these written reasons.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 14 September 2016.

Associate:

Date:  14 September 2016