BOSTRIDGE & SMALLWOOD

[2018] FamCA 689

FAMILY COURT OF AUSTRALIA

BOSTRIDGE & SMALLWOOD [2018] FamCA 689

FAMILY LAW – PRACTICE AND PROCEDURE – Procedural Fairness – Where the mother failed to attend the final hearing – Where the mother was afforded procedural fairness and it was proper for the hearing to proceed in her absence.

FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility is rebutted – Where an order would be repugnant to the child’s best interests – Where the Independent Children’s Lawyer supported an order for the father to have exclusive parental responsibility – Father to have sole parental responsibility for the child.

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of a child – Where the child has no meaningful relationship with the mother – Where the child is reluctant to spend time with the mother – Where the mother previously ceased spending supervised time with the child for a period of nine months – Where the mother has since disengaged from proceedings – Where the mother has a history of drug use and mental ill health – Where the mother lacks insight into the child’s emotional needs – Where there is a risk of psychological harm to the child if he is forced to spend time with the mother – Where the father understands the importance of the child’s relationship with the mother – Concluded no orders should be made for the child to spend time with the mother – Where the father can decide, as an incident of his exclusive parental responsibility for the child, when and how the child spends time or communicates with the mother.

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 60CC(2)(a), 60CC(2)(b), 60CC(3), 61DA, 61DA(4), 64B, 65AA, 65D, 65DAA

Allesch v Maunz (2000) 203 CLR 172
Taylor v Taylor (1979) 143 CLR 1

APPLICANT: Mr Bostridge

RESPONDENT: Ms Smallwood

FILE NUMBER: MLC 11328 of 2014

DATE DELIVERED: 23 July 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Austin J

HEARING DATE: 23 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Frajsman

SOLICITOR FOR THE APPLICANT: R F Legal

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Campbell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Nicholes Family Lawyers

Orders

1. All former orders relating to E born … 2014 (“the child”) are discharged.

2. The father shall have sole parental responsibility for the child.

3. The child shall live with the father.

4. The father shall ensure the child receives counselling as frequently and for as long as his chosen counsellor deems necessary.

5. The father is at liberty to provide to the child’s counsellor:

   (a)a copy of these orders and the reasons given for the orders; and

   (b)a copy of the family report dated 7 June 2018.

6. The father shall:

   (a)provide a copy of these orders to the principal of any pre-school or school attended by the child; and

   (b)authorise the principal of any pre-school or school attended by the child to provide to the mother at her expense copies of all reports and photograph order forms relating to the child

7. The parties shall forthwith inform the other and keep the other informed in writing of their mobile telephone numbers.

8. Pursuant to s.65DA(2) and s.62B, 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 these particulars are included in these orders.

IT IS CERTIFIED:

1. Pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

AND THE COURT NOTES

A.These orders intentionally make no provision for the child to spend time or communicate with the mother.  Whether the child does so and the circumstances under which it might occur are decisions for the father to make as an incident of his exclusive parental responsibility for the child.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11328 of 2014

Mr Bostridge

Applicant

And

Ms Smallwood

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings concern a dispute between the applicant father and respondent mother over parenting orders in relation to their four year old son pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. The proceedings have been on foot since December 2014 and were fixed for trial during this week (late July 2018). The respondent mother failed to appear, without explanation, but the father and the Independent Children's Lawyer both sought that the trial proceed regardless. They maintained a common position that the child should continue to live with the father and he should have sole parental responsibility for the child. Such an outcome was inevitable in the mother’s absence. The only residual issue was what, if any, orders should be made to regulate the child’s future interaction with the mother.

HISTORY

1. The parties’ relationship ended shortly before the child was born in 2014. Unsurprisingly then, the child remained in the mother’s primary care after his birth. The child spent little time with the father, about which the father was dissatisfied and so he commenced these proceedings in December 2014. 

2. Interim orders were first made by the Federal Circuit Court of Australia in March 2015, requiring the child to live with the mother and to spend time with the father. Thereafter, further interim orders were made which expanded the time the child was to spend with the father and the final trial was pushed back from May 2016 to November 2016. 

3. In August 2016, the Victorian child welfare authority removed the child from the mother’s care for a second time, due to her persistent illicit drug use, and placed the child in the father’s primary care, where he has been ever since. The child welfare authority was satisfied with the child’s safety in the father’s care and has not been involved with the family since. Consequently, in August 2016, more interim orders were made by the Court. The existing orders were discharged and fresh orders were made for the child to live with the father and to spend only supervised time with the mother. The trial dates in November 2016 were vacated and it was not until March 2018 that the trial was re-listed for July 2018.

4. In the meantime, in May 2017, the mother voluntarily ceased attending the supervised visits with the child. She did not allow the child to resume spending supervised time with her until February 2018 so, in the intervening nine months, she simply disappeared from the child’s life without explanation. Since February 2018, the child has spent time with the mother under professional supervision at a contact centre, which occurred once every two to three weeks. 

5. The mother filed evidence in readiness for trial pursuant to the procedural orders made in March 2018, but then failed to appear at the trial. The Independent Children's Lawyer informed the Court that she called the mother on her mobile telephone, but there was no answer, and so a message was left for the mother to return the call, but so far she has not responded. No message has been conveyed to the Court by or on behalf of the mother explaining her failure to appear. 

6. The father and the Independent Children's Lawyer both sought that the trial proceed in the mother’s absence. Neither sought an adjournment. The trial did proceed in the mother’s absence because she was not denied procedural fairness. She failed to appear and present her case without any explanation. If the mother is dissatisfied with the orders pronounced by the Court, she will be able to challenge them, provided she can satisfactorily explain why she failed to attend the trial to contest the proceedings (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).

PROPOSALS AND EVIDENCE

1. The father and the Independent Children's Lawyer jointly proposed orders (Exhibit A) which provided for the child to live with the father and for him to have sole parental responsibility for the child. They propose that no orders be made to prescribe the child’s future interaction with the mother, leaving those decisions to the father as an incident of his exclusive parental responsibility for the child. 

2. In support of those orders, the father relied upon: 

   (a)His affidavits filed on 13 April 2018 and 17 May 2018; 

   (b)The affidavit of the paternal grandmother filed on 13 April 2018;  and

   (c)The affidavits of three paternal aunts, all filed on 13 April 2018. 

3. Neither the father nor his witnesses were required for cross-examination by the Independent Children's Lawyer. 

4. The Independent Children's Lawyer relied upon the affidavit of the contact centre supervisor, Ms W, filed on 18 June 2018. She was not required for cross-examination by the father. 

5. The father and the Independent Children's Lawyer also relied upon the following two documents prepared by the Family Consultant, Ms C, in relation to which she was not required for cross-examination: 

   (a)The Memorandum dated 20 January 2017; and

   (b)The Family Report dated 7 June 2018. 

6. Given the mother’s failure to attend the trial, the affidavit evidence she filed was ignored because neither she nor her witnesses were available for cross-examination.

LEGAL PRINCIPLES

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA), although that presumption may either be rendered inapplicable or rebutted in certain circumstances.

4. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, although the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

CHILD’S BEST INTERESTS

Section 60CC(2)(a)

1. The child has lived with the father for the last two years. They have a meaningful relationship from which the child derives great benefit. 

2. The Family Consultant observed the child to run to and hug the father to greet him. The Family Consultant opined in the Family Report (at [116]):

   … [the child’s] well-being is facilitated by his experience of stable parenting and notably the highly significant relationship with his father who for [the child] appears to represent the emotional care, stability and reliability lacking for him in his early years.

3. That is not really controversial because the mother admitted to the Family Consultant the father had “done brilliant things” (at [73]) with the child after he moved into his primary care. 

4. By contrast, the child’s relationship with the mother is much less meaningful to him and he derives far less benefit from it. The child expresses considerable trepidation about spending time with the mother and acts with consistent apprehension when doing so. He seeks reassurance about where the father will be during his contact with the mother and his ultimate return to the father following such contact. Even though he is no longer “hysterical” when spending time with the mother, it still tends to be a traumatic experience for him.

5. The Family Consultant confirmed those facts for herself. She had to reassure the child that the father would be close at hand during the observation session and any discussion with the child about the mother elicited recurrent questions from him about the father’s location. When the child was introduced to the mother, he was observed to repeatedly walk past and away from her, as if avoiding her. The Family Consultant was moved to observe:

   [112] [The child’s] relationship with his mother is expressed through ambivalence and avoidance … [the child] is expressing a “realistic estrangement” from his mother. 

   [114] [The child’s] conduct in interview was extraordinary, both in replicating claims about his behaviour made by both [the father] and [the paternal grandmother] but in his ability to name his anger, to both identify his fear and the point of origin of his suffering, his mother, and to nominate the enduring impact this has had on his life.

Section 60CC(2)(b)

1. Although not ultimately expressed in these terms, the litigation was underpinned by the father’s contention that the child requires protection from the psychological harm he is liable to suffer through the mother’s neglect of his emotional needs. 

2. The evidence demonstrated that to be so but, since the point was made more indirectly in conjunction with his contention about the mother’s inferior parenting capacity, it can be more conveniently discussed under s 60CC(3) rather than s 60CC(2)(b).

Section 60CC(3)

1. The overarching feature of the evidence was the mother’s impaired parenting capacity. Although it is strictly unnecessary to analyse why her parenting capacity is so impaired, it is instructive in case she ever commences fresh proceedings and seeks to demonstrate changed circumstances. Most probably, the impairment of the mother’s parenting capacity is attributable to several compounding factors: her illicit drug use; her unstable psychological health; and her lack of insight. 

2. The mother has suffered drug induced psychosis in the past, indicating a heavy pattern of drug use. She admitted her hospitalisation in July 2016 was due to her relapse and use of methamphetamine. She admitted to the Family Consultant she used “ice” in 2017 and, in April 2017, she returned a positive drug screen for opiates and benzodiazepines (at [35]). At the time of her most recent interview with the Family Consultant, she alleged she was now abstinent, but her bare assertion of such is hardly probative. Even if she is now abstinent, the risk of relapse remains pronounced because her abstinence is relatively recent in the context of a long history of illicit drug use.  

3. The instability of the mother’s psychological health is similarly troubling. Since her teenage years, independent records canvas the prospect of her diagnosis with anxiety disorder or borderline personality disorder and possibly even schizophrenia. She has suffered drug induced psychosis, exhibited paranoia, and been identified as thought-disordered. Despite such documented concerns, the mother has not undertaken any treatment and has not complied with recommendations of her treating practitioners. That is particularly concerning when she claims Centrelink benefits on the basis of her diagnosis and ongoing need for psychiatric services. 

4. It seems the mother ignored interim orders requiring her to submit to independent psychiatric assessment and to adhere to any recommended treatment plan. In any event, significantly for present circumstances, there is no evidence confirming the status of the mother’s psychological state. On the available evidence, it seems she is selective of and occasionally resistant to the psychological services made available to her. The Family Consultant said (at [31]) that the mother has the capacity to “manipulate professional alliances”. 

5. Without convincing proof of the mother’s enduring abstinence from illicit drug use and stable psychological health, it would be a leap of faith to prescribe, by order, the nature of the child’s future interaction with her.

6. The situation is even more vexed by the mother’s ambivalent relationship with the child. The Family Consultant opined: 

   [70] …[the mother] appears unable, at this stage, to reflect on [the child’s] experience of her behaviour as inconsistent when she withdrew from spending any time with him from May 2017 until February 2018.

   [110] …[the mother] was a substance affected abusive parent who could not focus on the needs of her child and who exposed [the child] to a level of emotional and psychological abuse that is only now being revealed as [the child’s] experience of trauma. 

   [111] [The mother] to date has not understood that [the child’s] responses to his mother are a powerful and nuanced reflection of his early life with her and it is only under the rare circumstances where [the child] feels safe he can allow himself to tap into his own feelings and report the depth of his sensate trauma memories developed in those tender years.

7. Clearly, in the Family Consultant’s view, the mother lacks insight into the child’s emotional state and his needs. 

8. The father is alive to the problem between the child and mother. He is not thwarting their relationship, as the mother mistakenly asserted during the proceedings. On the contrary, the Family Consultant reported (at [45]):

   [The father] feels flustered trying to manage these issues and he wants to support [the child] having a relationship with his mother but he remains deeply concerned about what will be the best decisions for [the child].

9. Prior to the trial, the mother filed an Amended Response acknowledging the child should continue to live with the father, but she proposed an expanding regime of the child’s interaction with her, which entailed the dispensation of their supervision. A change of that magnitude would have deleterious consequences for the child. He is not ready to spend time frequently with the mother, let alone for prolonged periods and without supervision. 

10. The paternal grandmother was reluctantly willing to offer her supervisory services again, but that was a measure of how the father and the paternal family members are not intent on destroying the child’s relationship with the mother.  They are willing to help, provided the child is emotionally protected, but nothing short of professional supervision in a contact centre would suffice at the moment.  The real question is whether such a regime would meet the child’s best interests if imposed on an indefinite basis.

11. The Family Consultant proposed that the child only continue to spend supervised time with the mother at monthly intervals and only then after the child begins psychological therapy. The Family Consultant further recommended that the frequency of supervised visits could then increase at the discretion of his therapist, but that recommendation is rejected. The Court is empowered to determine the child’s best interests, not his therapist. Such a decision is made in accordance with the evidence presented to the Court. Significantly, the Family Consultant sees no scope to dispense with professional supervision, but final orders for permanent professional supervision are discouraged for very good reasons. They are very restrictive for both the child and the supervised parent.

1. The Family Consultant observed (at [118]):

   [The mother] demonstrates no current capacity to reflect on the depth of [the child’s] trauma and the level of fear and apprehension he currently experiences in relation to spending time with her … forcing compliance in relation to spending time with [the mother] is exacerbating [the child’s] emotional difficulties and sense of confusion. [The child] requires some intensive therapy with the periods of not spending time with [the mother], more extended …

2. Given the child’s realistic estrangement from the mother, his anxiety about seeing her, and his need for therapy to repair his trauma, the better option is to cease his interaction with her altogether. That is a better option than forcing him to endure indefinite supervised visits. The mother might not even avail herself of such visits anyway. She did not for the period of nine months between May 2017 and February 2018 and she did not attend the trial. Perhaps she does not have the emotional fortitude to commit to her relationship with the child in the face of her personal difficulties, though her difficulties cannot be permitted to continue being the child’s difficulties. The child needs to be insulated from the trauma the mother creates for him. The father can decide if, when and how the child spends time and communicates with the mother as an incident of his exclusive parental responsibility for the child, just as he and the Independent Children's Lawyer proposed. 

CONCLUSIONS AND ORDERS

1. The presumption that the parties should have equal shared parental responsibility for the child is rebutted by the evidence which proves an order to that effect would not promote the child’s best interests (s 61DA(4)). The mother told the Family Consultant she is “not getting along” with the father and could only communicate with him in writing in the event of emergency (at [77]). For his part, the father deposed he has no trust in the mother, which is hardly surprising, since she admitted to the Family Consultant she fabricated allegations of his criminal misconduct. He only communicates with her through lawyers. 

2. The Family Consultant must surely be right to recommend that one party should have sole parental responsibility for the child. Obviously, that should be the father, since he will remain the residential parent. 

3. Since no order is made allocating equal shared parental responsibility, s 65DAA of the Act is not engaged. For the reasons given, the child will live with the father and no orders will prescribe the manner in which he spends time or communicates with the mother. That will be left to the father’s discretion.

4. The father and the Independent Children's Lawyer sought an order compelling the father to submit the child to trauma counselling, which proposal coincided with the recommendation of the Family Consultant. An order to that effect is made. To facilitate the implementation of that order, leave is granted to the father to give to the child’s therapist a copy of the most recent Family Report and a copy of these reasons. The father is also at liberty to provide a copy of the orders to the child’s therapist and to the principal of the child’s pre-school and school.

5. The orders require the parties to keep one another informed of their mobile telephone numbers in case they need to contact each other in the event of an emergency. 

6. For those reasons, I make the following orders.

ORDERS DELIVERED

1. I also make the following notation. She doubted the child would even remember the father.    

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 23 July 2018.

Associate: 

Date:  7 September 2018