Bosch & Annema (No 3)
[2024] FedCFamC1F 357
•27 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bosch & Annema (No 3) [2024] FedCFamC1F 357
File number: SYC 8269 of 2021 Judgment of: CHRISTIE J Date of judgment: 27 May 2024 Catchwords: FAMILY LAW – FINAL PARENTING ORDERS – Where the child is neurodiverse and has specific developmental needs – Where the child is habitually resident with the mother in Australia and the father lives overseas – Where the child has not spent time with the father for approximately four and a half years – Family violence – Where the father lacks the capacity to meet the child’s specific needs – Where the child is unable to cope with travelling to spend time with the father in his country of residence – Order for time between the child and the father to occur in Australia during school holidays and supervised – ICL costs application dismissed. Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DAA, 117 Division: Division 1 First Instance Number of paragraphs: 97 Date of hearing: 22–23 May 2024 The Applicant: Litigant in person Counsel for the Respondent: Ms Spain Solicitor for the Respondent: Swaab Attorneys Counsel for the Independent Children's Lawyer: Mr Fantin Independent Children's Lawyer: Scb Legal Pty Ltd ORDERS
SYC 8269 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BOSCH
Applicant
AND: MS ANNEMA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
27 MAY 2024
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the child, X, born 2013 (“the child”).
2.The child live with the mother.
3.The mother facilitate a Skype call between the child and the father once a week on Saturdays at 1 pm AEST and if the mother is unable to facilitate that call, the mother will notify the father and schedule an alternative skype call in that week.
4.For the purposes of Order 3 above, the mother initiate the call to the father.
5.The father spend time with the child in Australia under the supervision of E Family Services (or such other equivalent contact service appointed by the mother) at the cost of the father during gazetted New South Wales school holiday periods as follows:
(a)For a period of two hours each day for a period of up to three days; and
(b)The time spent between the father and the child in accordance with order 5(a) shall not occur more than three out of the four of the gazetted school holiday periods.
6.The time in Order 5 shall take place only if the father has provided the mother with 28 days written notice of his proposed travel to Australia and he shall at that time provide the dates that he intends to spend time with the child in accordance with Order 5.
7.Notwithstanding any other order, the mother facilitate the child to have Skype contact with the father on the following special occasions:
(a)On the child’s birthday at 5pm AEST;
(b)On Father’s Day at 5pm AEST;
(c)On Easter Sunday at 5pm AEST;
(d)On Christmas Day at 5pm AEST.
and in the event that the mother is unable to facilitate a skype call at 5pm AEST the mother will notify the father and schedule an alternative Skype call on the same day.
8.The father be permitted to send gifts, cards and/or letters to the child on the following occasions:
(a)The child’s birthday;
(b)Easter;
(c)Halloween; and
(d)Significant occasions including but not limited to when the child graduates or receives an award.
9.For the purposes of Order 8 above, the mother shall provide the father with a postal address for the gifts, cards and/or letters to be sent and shall notify the father within twenty-one (21) days of any change to this address.
10.The parties are restrained from denigrating the other parent in the hearing or presence of the child.
11.The father is injuncted from corresponding with or communicating with the mother other than to make arrangements with respect to Orders 3, 5, 6, 7, 8 and 9 and such correspondence shall be polite and respectful.
12.The oral application of the independent children’s lawyer for costs is dismissed.
13.Pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bosch & Annema has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This decision concerns X, aged 11. X has lived with his mother at all times since his birth in 2013. X’s father returned to live in the United States of America (“USA”) at the end of 2013 and accordingly the time X has spent with his father has, on all accounts, been extremely limited.
In approaching the determination of the dispute between X’s parents, my focus is not on the needs or desires of the parents but rather what parenting orders will be in the best interests of X.
It is therefore important to understand what the evidence says about X’s specific needs. X has been diagnosed with autism spectrum disorder (“ASD”), attention hyperactive deficit disorder (“ADHD”), significant generalised anxiety and a mild intellectual impairment, previously global development delay. X is in receipt of the National Disability Insurance Scheme (“NDIS”). In interview with the Regulation 7 family report writer appointed for the purposes of preparation of a Family Report (“the family report writer”), it is recorded that the mother “described [X’s] difficulty regulating emotion, social deficits, sensory sensitivities, impulsivity, and an anxious affect in unfamiliar settings.” The family report writer also records that the mother said that X’s needs “include safety and security, a need for agency, control over his environment, prompting and significant planning and preparation to mitigate overwhelm.” The family report writer records that the father for his part “emphasised the importance of keeping ‘open minded’ to alternative perspectives other than a neurodiverse presentation, suggesting [X’s] school report cards do not indicate neurodivergence.”
The proceedings were commenced in 2021.
On 24 April 2024 directions were made for the filing of trials affidavits. The mother complied with that direction. The father did not.
The mother has also complied with the direction to file a Case Outline.
Notwithstanding earlier orders of the Court and the father’s failure to comply with the Court’s directions, in chambers I gave the father leave to appear at the hearing via Microsoft Teams.
The father appeared. In recognition of the importance to X of the proceedings being brought to a conclusion, I permitted the father to give evidence on oath orally.
An Independent Children’s Lawyer (“ICL”) appeared in the proceedings.
Two reports were prepared in this matter, a Child Impact Report in 2022 and a Family Report in 2023.
The father submitted, and I accept, that he was at a disadvantage because he did not have the assistance of a lawyer to prepare trial material or act for him at the hearing. In this regard the father is at the same disadvantage as many persons who appear before the Court on their own behalf. While it was clear from the father’s repeated references during the hearing that he would have preferred the matter be adjourned, he never made a formal application for adjournment (and his earlier application had been refused). It was not plain that an adjournment would have resulted in the father obtaining legal representation and the interests of the child and the availability of a recent report by the family report writer made clear that finalisation of the proceedings was in X’s interests.
CONSIDERATION
Parental Responsibility
The mother sought an order for sole parental responsibility. The father sought an order for “joint decision making” responsibility.
Section 61DAA of the Family Law Act 1975 (Cth) (“the Act”) provides:
(1) If a parenting order provides for joint decision‑making by persons in relation to all or specified major long‑term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a) to consult each other person in relation to each such decision; and
(b) to make a genuine effort to come to a joint decision.
(2) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
To the family report writer, the father characterised the co-parenting relationship as a “train wreck” and the mother characterised the co-parenting relationship as “non-existent”. The family report writer opined:
55.In light of the divergent perspectives of [X’s] psychosocial wellbeing and needs, the parents appear to evince limited capacity to resolve conflict or co‑parent in a collaborative and child focused manner. Both parents were highly critical of the other, and their capacities to promote [X’s] relationship with the other remains a very complex issue. They both seem to underappreciate the grievances they attach to each other, and the effect of this on [X’s] developing concept of family and emotional wellbeing.
The difficulties are compounded in this case by the short relationship, the very limited time the parents were physically together after X’s birth and the significant geographical distance between their homes.
I am not confident that the father appreciates that he was consistently disparaging of X’s mother during the trial. The father gave evidence that in his view the mother had suffered a post partum psychosis. He referred to her in closing submissions as having been content to have the “government become the baby daddy” and suggested things might improve if she took her “financial fangs off [his] neck”. He alluded to his upbringing not having included family alcoholism and police involvement unlike, he submitted, the mother’s own upbringing.
It is apparent that X has an awareness that his parents are not on friendly terms. A requirement that they communicate and cooperate to reach joint decisions would create a greater potential for further exposure to likely conflict.
In addition to the potential for conflict and the parties’ differing view about X’s medical and education needs discussed in more detail in these reasons, there is the practical issue of the father living in a different country and time zone.
Having regard to the matters discussed above, the only order for parental responsibility which is consistent with the best interests of X is one which permits the mother to make decisions.
Time
The parents agree that X will continue to live with the mother. The parties are at issue about how much time and in what circumstances X will spend time with the father. The orders the mother seeks broadly provide for supervised face to face time in Australia and monthly electronic communication. The orders the father seeks in broad terms provide for face to face time in both Australia and the USA for periods of up to three weeks and electronic communication twice each week.
At the conclusion of the evidence, the ICL sought orders for X to spend time with the father in accordance with the mother’s proposal, save that electronic communication should be weekly and sought some additional orders which facilitated X receiving gifts and cards from the father.
I turn now to consider the relevant matters which inform my determination about what orders for time will be in the best interests of X.
Safety considerations
Section 60CC(2) of the Act deals first with:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
And further, subsection (2A) says:
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
In X’s case, the evidence led in the mother’s case focused on the following safety concerns:
(a)Allegations that the father had been violent and abusive in his dealings with the mother; and
(b)Allegations that the father experienced erratic mood changes during his relationship with the mother such that she is concerned about this occurring during time with X.
The mother’s evidence about family violence was contained in her affidavit as follows:
47. [Mr Bosch’s] anger and aggression towards me escalated as my due date [for X’s birth] got closer including the following:
47.1. The first time that [Mr Bosch] was physically aggressive towards me he grabbed my arm from out of the blue with both his hands and squeezed and twisted my arm. It shocked and hurt me. [Mr Bosch] laughed and said "your reaction was funny''.
47.2. On another occasion [Mr Bosch] twisted my arm wrist. I said to him "stop that hurts" to which [Mr Bosch] replied "You think that hurt, what if I just break your knee caps"
47.3. In [early] 2013 [Mr Bosch] and I were in the car and [Mr Bosch] grabbed my thigh hard and dug his finger nails into my skin. I screamed out in pain.
47.4. [In] 2013, one week prior to [X’s] birth, [Mr Bosch] was in a fit of rage and chased me around the house and up the stairs while I struggled to get away. I ran into a bedroom and locked the door behind me. [Mr Bosch] banged on the door and I was fearful he was going to hit me.
47.5. [The next day], [Mr Bosch] woke me in the middle of the night screaming at me. I was in a deep sleep, and [Mr Bosch’s] yelling woke me up in a state of fright. It scared me to the point of tears.
47.6. [Mr Bosch] told me words to the effect: "Because you're pregnant everyone only pays attention to you and nobody is paying attention to me"
…
49. Following [X’s] birth, [Mr Bosch’s] aggression towards me increased and I became fearful for my and [X’s] safety. Examples of this behaviour include:
49.1. [Mr Bosch] started restricting my food. I was malnourished and unable to produce enough breastmilk.
49.2. I did not have access to a phone, tv, internet. I was very rarely able to use an unreliable wi-fi signal from the area to contact [Mr Bosch’s] sister and ask for help.
49.3. [Mr Bosch] screamed at me after I got [X] immunized. [Mr Bosch] berated me for hours after the appointment and repeatedly told me "only uneducated people get vaccines"
49.4. [Mr Bosch] said “Maybe I should buy a gun”
49.5. [Mr Bosch] repeatedly threatened to "call immigration" to have me deported and sent away from [X].
49.6. [In] 2013 while I was holding [X], [Mr Bosch] punched a wall inches from my face and yelled "you make me do this".
49.7. [In] 2013 [Mr Bosch] screamed at me, snatched [X] out of my arms and pushed me to the ground.
49.8.[Mr Bosch] screamed at me centimetres from my face and said "you're horrible you make me miserable"
49.9. In […] 2013 [Mr Bosch] closed me in the kitchen preventing me from settling [X] who was crying.
49.10.In […] 2013 [Mr Bosch] threw a heavy [object] at me which left me bruised. I took a photograph of the bruises. I also advised my friend [Ms F]. I received a response email from [Ms F in] 2015. I also emailed a photograph of the bruise to [Mr Bosch in late] 2013 and received no response from [Mr Bosch].
…
49.11. In [mid] 2013 [Mr Bosch] screamed at me and [X] "this was all the biggest mistake. I wish I could take back him being born"
49.12. As deposed to below [in mid] 2013 [Mr Bosch] threw dog faeces on [X’s] belongings including his cot, toys and clothes. He also threw the contents of a bin and shook out his dog’s large bed mat all over [X’s] things and room. I took photographs of this. He then kicked [X] and I out of the house.
49.13. [In mid] 2013 [Mr Bosch] kicked [X] and I out of the house.
The mother also sets out details of conversations with the father in mid-2013 which contain threats to harm himself and threats to harm the mother.
The mother relies on an affidavit by Ms G, with whom she stayed in mid to late 2013. Ms G’s unchallenged evidence is consistent with that of the mother.
The mother made contemporaneous inquiries with a women’s shelter in the USA and with the police in the USA towards the end of her relationship with the father. She attaches evidence in respect of an appointment made for her by the women’s shelter to assist in filling out paperwork requesting a Domestic Violence Civil Protection Order. The mother explains that she did not attend the appointment due to being fearful of what the father might do and being fearful of being either stuck in the USA or deported without X. The mother gives the same explanation for not making a formal police report despite attending upon them. Her explanation is credible and I accept she approached the police. It was not (and could not be) suggested that she took those actions in aid of these proceedings.
The mother took photographs of injuries which she says were inflicted on her by the father throwing an object at her. In late 2013 the mother sent a photo of this injury to the father by email with the accompanying text: “Is this what [yo]u mean about treating me better than any other woman on the planet..” There is no response in evidence.
The mother attached an email from her friend Ms F dated mid-2013. It reads: “If he gets physical with you again – do not hesitate – CALL THE POLICE!!!” (as per the original). This is consistent with the mother having contemporaneously reported physical violence by the father towards her to her friend.
The father denied the allegations in the mother’s affidavit in broad terms labelling her comments defamatory. He did not directly challenge the specifics which she described.
In addition, to the evidence set out above I have had regard to the father’s email communication with the mother which is discussed in more detail below.
I am comfortably satisfied on the balance of probabilities that the incident in mid-2013 occurred in the manner which the mother described on oath and the father did not challenge by cross-examination. The mother annexed the photographs of X’s room and the dog faeces she says was thrown by the father. Ms G’s evidence which was also unchallenged is confirmatory. The father’s conduct on this day meets the definition of family violence.
I am comfortably satisfied on the balance of probabilities that the father’s actions in mid-2013 resulted in the mother’s injury to her leg. The father’s conduct on this day meets the definition of family violence.
The father says that arguments are not the same as family violence. I agree. Apart from returning to the communication between the parties I will not make findings in respect of the balance of the allegations since the matters about which I have made findings do not support the making of any order for joint decision making and raise concern about orders which would require the parties to come into direct contact with one another. The findings also support a limitation on the communication between the parents to that which is necessary to facilitate time.
It follows that I have formed the view that the mother’s disinclination to engage with the father’s voluminous correspondence with her is understandable.
(b) any views expressed by the child;
This is not a case which can or should turn on the views of the child. I acknowledge X seemed anxious about any proposal to travel overseas without his mother when he met with the Court Child Expert who prepared the Child Impact Report, saying “this would be ‘bad’, and that he would have worried and scared feelings without his mother.”
When X met the with the family report writer, he did not express a view. The family report writer recorded:
61.[X] did not express a view regarding future parenting arrangements; however, it is the opinion of the writer that limited weight would be attributed to such views given his neurodivergent presentation and diagnoses. His relationship, in the context of being observed with [Ms Annema] included interactions reflecting a sound attachment/relationship, and a sense of belonging. To [X], [Mr Bosch] appears to represent a familiar attachment figure, albeit one whom he has shared infrequent physical contact. Their relationship does not appear firmly established.
Counsel for the ICL asked a question premised on his instructor’s conversation with the child which purported to convey the child’s views about time with the father. I do not consider that the question itself is evidence.
I accept the opinion of the family report writer that X’s views (if in evidence) would be given limited weight.
(c) the developmental, psychological, emotional and cultural needs of the child;
This consideration is one of the most significant in this case. As outlined above, X has been diagnosed with ASD and ADHD and is in receipt of assistance through the NDIS. X has been under the care of the same paediatrician since September 2020. The mother relied on an affidavit of that paediatrician in these proceedings.
The family report writer expressed the view that X’s presentation at interview was consistent with his diagnosis.
The family report writer made specific practical recommendation about the tasks to be undertaken by X’s father to better equip him to meet X’s needs. One of those was to undertake “parent education on neurodiversity with [autism support organisations] (or the equivalent in the USA) to enhance his protective capacity and ability to meet [X’s] diverse needs.”
The father provided the Court with evidence that he has completed a course offered by H Organisation. He gave evidence it was a webinar with tests. The description provided by the father was to the effect that it was a course towards qualification to work with autistic children. It was not, as the report writer had suggested, a specific course for parents.
Notwithstanding the fact that the course was not specifically as anticipated by the family report writer, I am satisfied that the content would be of utility to a parent of a child with an ASD diagnosis. The difficulty that I have at the conclusion of the evidence is that when the ICL asked the father what he had learned which would assist he responded to the effect that he had learned that if we reinforce aberrant behaviour we are making X more autistic. In effect the father summarised what he had learned as confirming his view that the mother’s conduct is responsible for X’s behavioural dysfunction. This is consistent with the message the father left for the mother on 21 April 2024 following a call that ran for 3 minutes and 26 seconds and then a missed call: “Aberrant behaviour re-enforced. Rude to not answer and hang up. Likely not there at all.”
X and the father have not spent any face to face time with one another since early 2020, about four and a half years. The family report writer, in his recommendations released to the parties in about October 2023, indicated a number of recommendations to assist X as prerequisites to the time arrangements. They included:
72.That both parents coordinate with [X’s] paediatric team, and each another, to appropriately prepare him for the spend time arrangements and mitigate potential distress.
…
76.That [Mr Bosch] collaborat[e] with [X’s] paediatric supports and psychologist to nurture the extension of the father/child relationship.
The father confirmed he had not complied with these recommendations. The mother submits that the father’s failure to comply may have its genesis in his failure to accept the diagnosis. The father says he has not found the practitioners accepting of his previous inquiries. In one sense the reason for the father’s failure to engage in the recommended course of action is immaterial. The effect is that X has missed the opportunity for his father to be provided with information which would be of utility to their interactions. Similarly, the father has missed the opportunity to ask questions and clarify current issues for X with the people best able to provide that information.
The family report writer saw the development of parental skills as key to the eventual development of parental attunement sufficient to develop a relationship and assist X with time away from his mother, time with his father and (hopefully) travel.
What was plain from the evidence of both parents at trial was that the mother accepts that X has special needs and she has developed strategies to assist X in dealing with the ways in which those issues present. Specifically, the father asked the mother about skype calls and why she did not reassure X during those calls. The mother said she was always reassuring X. The father was plainly looking for much more direct intervention by the mother in the skype calls between himself and X to improve the quality of the interaction. The mother’s response appeared consistent with the medical evidence she had filed. She told the father that if X is oppositional you need to try to work with him, not against him or the intervention will not assist. She was effectively explaining to the father that forcing X to speak with him would in all likelihood be counterproductive.
A combination of mistrust, lack of coparenting history, differing opinions about X’s diagnosis and perhaps different life experiences combine to make it extremely difficult for X’s parents to provide a consistent approach to issues including the time and communication between father and child.
The father labelled X’s diagnosis as a "science experiment” and his repeated references to the mother as suffering “Munchausens” (by which I understood him to mean Munchausen by proxy – now regularly referred to as factitious disorder imposed on another) could only have been interpreted as consistent with the father’s view that X has been misdiagnosed and the mother has sought medical treatment for him for her own ends.
The father’s evidence repeatedly contained references to the mother keeping X in a bubble or helicopter-parenting. The difficulty with the father’s conclusions on this topic is that they are grounded in his conversations with family and his own experiences (including experiences of a young X) as opposed to any face to face time in the last four and a half years or any meaningful engagement with X’s treaters.
I accept that the father is best placed to foster X’s American culture. I do not accept that can only occur in the USA. If there were not the specific impediments to travel discussed elsewhere in these reasons, I would have no hesitation in making orders for X to travel to the USA.
The father’s family have not travelled to Australia. I have little detail about the reasons (if any) to explain their failure to do so. The father’s sister sent a letter to the mother which was confrontational and distressing to the mother. I am not satisfied that, notwithstanding the theoretical benefits to X of travel to the USA and the potential to meet paternal family members, the evidence establishes that such a trip would be in X’s best interests.
The father’s submissions (orally and in writing) focused on concepts of fairness which have no place in my adjudication. I must determine which parenting arrangement best meets X’s needs and make orders accordingly even if the ultimate outcome is perceived as unfair to the adults involved or either of them.
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
Section 60CC(2)(d) of the Act directs the court to consider the capacity of persons who have or it is proposed may have parental responsibility. If read narrowly, the section might preclude consideration of the capacity of persons who will spend time or communicate with a child but do not have parental responsibility (or are not proposed to have parental responsibility). In any event, s 60CC(2)(f) enjoins me to consider all relevant circumstances and so I propose to consider the capacity of each of X’s parents.
In this case there is no issue raised by the material about the capacity of the mother to provide care to X.
The mother’s affidavit material raises concerns which if accepted would touch on the father’s parenting capacity.
A key concern is the father’s attitude to X’s diagnosis. An inability to accept objective evidence that X requires accommodations having regard to his diagnosis leaves the Court with the conclusion that the father lacks the capacity to meet X’s specific needs.
An additional concern about the father’s capacity is raised by the messages which he has sent to the mother, a selection of which are set out here:
(a)10 March 2015: “well they can have it, then” in response to the mother sending a photo with the words “You hate your life, while some people dream of having your life”.
(b)19 May 2015: “I am considering a move where no one will know my whereabouts.”
(c)20 May 2015: “not going to wear seatbelts anymore”
(d)8 September 2015: “Think I maybe should check in to some kind of anxiety clinic for a few days, the anxiety attacks are happening again. Cannot sleep. I lay”
(e)9 September 2015: “Good. Hungry, hot, tired, stopped by cop, crapped pants on dark road, deal, irritable, shower, straight to bed. Hope you two have better”
(f)22 September 2015: “Feel dead!”
(g)30 September 2015: “I may have accidentally poisoned myself.”
(h)10 February 2016: “Deal. Desolate. Dark. Dead, is I.”
(i)5 March 2016: “I don’t even want to wake up.”
(j)12 May 2016: “Think took 5 of tabs.”
(k)10 June 2016: “…Had to vomit twice. Well maybe you will be lucky and I may never wake up again. I cannot feel anything in my arms”
(l)9 September 2016: “Oh no, cannot geep eyes open on road!”
(m)11 October 2016: “Fakking asleep while driving”.
(n)24 September 2019: “…you are sick and you do not even realise it..”
(o)7 March 2020: “Deny, deflect… refusal to admit, exactly like #45 and the Republicans. No lies...Just the facts. Best check yourself.”
(p)5 May 2020: “The constant finding of conditions or issues with [X] is simply b.s. and likely more of a kind of condition of Munchausen Syndrome by Proxy on your part. Because of this, Im afraid he is being turned into an OCD regimented robot mini you”
Originally an order was made for a report to be prepared which would have provided evidence about the psychological functioning of both parents but the order was discharged as the funds were not available to pay for the report. The father did not directly address the mother’s evidence about his functioning.
The family report writer was provided with copies of the emails set out above as annexures to the mother’s trial affidavit. The report writer gave oral evidence about email messages which he had not seen at the time of his written report. As a consequence of having read the emails the report writer revisited the recommendations contained in the written report concluding that the emails raise mental health concerns, specifically that over a period of seven years the emails potentially evidence psychological disturbance. The family report writer gave evidence that the emails between the father and mother also displayed elements consistent with a pattern of coercion and control on the part of the father towards the mother.
In particular the family report writer said that the emails demonstrated psychological abuse, attempts to instil dependence, attempts to instil obedience and attempts to incite fear. The family report writer recognised he was not in a position to make findings about the mother’s allegations of physical violence but commented that if they were accepted then they were supportive of the father having engaged in a pattern of coercion and control.
In the earlier years after the parties’ separation, the number of calls made by the father to the mother over a very short period of time as set out in the mother’s material raise significant concerns about impulse control. This has changed over time but in 2021 still included the father ringing multiple times during a short time frame.
The father says he has no mental health issues which impact on his parenting capacity. The objective evidence raises sufficient concern that I am not necessarily prepared to accept the father’s denial as dispositive of the issue. From my perspective the question of whether the father has been diagnosed with any mental health diagnosis is not material. I am explicitly not making a finding that the father suffers from a diagnosable mental health condition. The objective evidence (under his own hand set out above) raises questions about his functioning which in turn cause me to have safety concerns about X other than in a supervised setting.
Another issue which touches on the father’s parenting capacity is his firm belief that he is without blame for the nature of his present relationship with X. The father accepts that he and X do not have a bond but said to counsel for the mother “your client should up her game and stop the alienation.” This was an oft repeated theme in the father’s evidence and belied an inability to evaluate his own actions and the manner in which he may have contributed to the current situation.
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
Since the father left Australia, the mother maintained a voluntary regime of time including face to face time and electronic communication via Skype. Her decision to facilitate same suggests an acknowledgment by her of the (potential) value of the relationship and connection for the parties’ child.
The family report writer also acknowledges X’s entitlement to the benefits of this relationship provided that he is safe.
The regime proposed by the mother would appear to offer the best opportunity for X to benefit from a relationship with his father.
(f) anything else that is relevant to the particular circumstances of the child.
In this case, the significant geographical distance between the parties’ homes in Australia and the USA and the cost of travel associated with any orders to spend time are relevant considerations. The child support arrears payable by the father to the mother as at 7 May 2024 are $66,665.09. The father disputes the assessment, I am not in a position to make a determination about the appropriateness or otherwise of the current assessment. I note however that the father accepts that he has not paid any child support for X for some years. While a parent may legitimately seek to challenge an assessment, the father’s failure to make any recent contribution is significant.
If nothing else, it is difficult to understand how it is that the father proposes to fund travel for X and or himself to facilitate face to face time in the future given these arrears. The father alluded to securing family assistance but if that is his plan he has not done that in order to travel to Australia in the last four and a half years or to make a contribution towards X’s day to day expenses.
There will be costs associated with the time X spends pursuant to orders in respect of travel and supervision. The father should meet those costs.
The father told the court that his last income tax return demonstrates annual income of USD$16,000. It seems unlikely that the father would fund more than one trip per year but I will make orders for up to three trips in case his financial circumstances change.
Location of time between X and the father
The father lives in State J, USA and the mother and X in Sydney, Australia.
X was born in the USA but has lived in Australia since late 2013. The father says this situation came about absent his consent. I accept that the father would prefer that X lived in the USA. However, neither parent has an entitlement per se to have X live in one country or the other. The fact is that X is habitually resident in Australia and if he is to spend time with his father it is likely to be in either Australia or the USA.
X has spent time with his father in Australia. Initially the father travelled to Australia, staying with the mother and during that time spending time with X in the presence of the mother. There were two such occasions according to the evidence: one in 2015 and another in 2016. Following this the father travelled to Australia on two further occasions, the first in 2018. The last visit was early 2020. During those trips the father had separate accommodation and saw X mostly in the presence of the mother.
What the mother proposes is in some sense a continuation of what has occurred albeit that she proposes the supervision be professional as opposed to provided by her.
The father would (understandably) like X to travel to the USA. This would have the advantage of seeing the father in his home and country, engaging with members of the paternal family and coming to appreciate in person the culture of the USA. The father, in his oral evidence said words to the effect “it’s time for a home game”.
In an ideal world there is merit in the proposal which the father makes for X to travel to the USA. The difficulty is that the proposal cannot be evaluated except by reference to X’s actual circumstances which speak strongly against such travel.
It was uncontroversial that travel would take at least a whole day and include a flight of up to 14 hours from Sydney to the USA and a further flight within the USA in order to reach the father’s home. The father said the estimate of 26 hours was “in the ballpark.” As against this the mother’s evidence was that X barely tolerates a car ride of 30 minutes duration.
Apart from the practical issues of cost (as discussed above), I have formed the view on the basis of the mother’s evidence and that of X’s treating paediatrician, Dr K, that X would not cope with the length of travel between Australia and the United States and same would cause him anxiety and distress.
Dr K’s report says:
[X] becomes very anxious and emotionally dysregulated at times of transition and when there are changes in his routine. At these times, he becomes very overwhelmed and distressed. He is heavily dependent on his mother and the familiar routines at his home. I do not advise that he travels to [the] USA since this trip will cause significant distress for [X], since both the plane trip and meeting/staying with his father in a very unfamiliar place will be extremely challenging for [X], and harmful for his mental health and emotional well-being.
It was not plain that the family report writer had considered the impact of travel on X when making the recommendations in his report save for the fact that X’s ability to travel independently without the assistance of his parents is limited. After the family report writer had read and considered the evidence of X’s paediatrician he conceded that the paediatrician was better placed to assess X’s capacity to travel than he was given their short interaction.
Supervision
To date, all of the time which X has spent with the father has largely been supervised by the mother. I accept that supervision of time between a child and a parent introduces limitations. Accordingly, it is only appropriate to make time conditional upon supervision where it is necessary having regard to X’s welfare and wellbeing.
I am satisfied that there are a number of factors which make supervision a necessary precondition to any time:
(a)The fact that the father does not accept X’s diagnoses;
(b)The fact that the father has not spent time with X absent supervision;
(c)The fact that X has absconded from the father in the past;
(d)The fact the father has failed to follow the expert recommendations – engagement with X’s treaters and parent specific education; and
(e)The family report writer’s evidence that the father’s correspondence with the mother raises concerns about the father’s mental health which have not been addressed by an assessment and the potential risks which flow from this militate against unsupervised time.
I am satisfied that it is not appropriate that the mother be responsible for providing supervision. The mother has identified the agency, E Family Services. One of the benefits of professional supervision is that the time, date and location will not be the subject of negotiation between the parties.
The father should be responsible for the costs of supervision in circumstances where the mother has presently and for some years borne all of the costs of X’s support.
Electronic communication
On 10 October 2019, the parties agreed to X and the father speaking via Skype on three occasions per week. They were to be Mondays, Thursdays and Saturdays. The mother says the father did not call on Thursdays and only called sporadically on Mondays, such that on 19 April 2021 she proposed 5.00 pm on Mondays and 1.00 pm on Saturdays as times which were suitable to X. The mother says the father called at different times.
In September 2022 the parties began calls on the weekend facilitated by the mother. Neither party suggests that the calls have been overly positive. The mother says X’s diagnosis means that he finds it difficult to concentrate for extended periods particularly if there is a distraction in the background of the father’s call.
The father says he often sees the wall or a plant. The mother was asked if she is present. She responded that she is nearby and available if required but tries to give the father and X some space.
In the oral evidence of the family report writer he indicated that he wished to change his recommendation about the frequency of electronic communication. He was sufficiently concerned about the father’s mental health pending assessment that he recommended that the electronic communication occur once per month (supervised) pending assessment.
At the conclusion of the hearing the mother adopted this recommendation as to frequency but not the necessity that it be supervised.
The communication is for the benefit of X. An order which requires it to occur with greater frequency or for a longer period than X can tolerate will not be of assistance to X or to the development of X’s relationship with the father. I am therefore not persuaded that twice a week (which is the current arrangement) is meeting X’s needs. By the same token I am concerned that reducing the electronic communication to once a month has the capacity to be counterproductive.
The mother says that X exhibits reluctance to engage and has no bond with the father. The parents will need to work with X to make each interaction with his father as positive as possible. If there is to be face to face time, then the electronic communication is an aid to ensure that the face to face time is more positive and meaningful.
Rather than relying upon the mother to provide him with information the father should follow the recommendations of the family report writer and contact X’s treaters and ask them for advice about interaction via skype. He ought to familiarise himself with the information on the website of X’s school and engage about topics which arise from that source. He should ask X age-appropriate questions including about birthday and Christmas gifts, hobbies, friendships and the like.
The father’s absence from X’s life for the past four and half years (at least as far as face to face contact is concerned) has not provided X with opportunities to develop his relationship with his father. In circumstances where I propose to make orders for face to face time and, based on the evidence, assume it will occur on a best case scenario probably once per year then the skype communication becomes more important to create some familiarity between X and the father.
COSTS
The ICL sought costs in accordance with the costs notice provided to the parties and the Court. I indicated that I proposed to dismiss the oral application and provide reasons. I am satisfied having regard to the financial statement of the respondent and the evidence about child support arrears that the provisions of s 117(4)(b) of the Act apply in respect of the respondent. I am satisfied that the evidence about the father’s financial circumstances is such that I would not depart from the usual rule.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 27 May 2024
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