BURNHAM & PARCH
[2015] FCCA 1812
•3 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BURNHAM & PARCH | [2015] FCCA 1812 |
| Catchwords: FAMILY LAW – Parenting – whether an eleven-year-old child should continue to live with her mother when the mother has been found to have some traits consistent with a diagnosis of Munchausen Syndrome by Proxy – where the father seeks only time with the child and is not a suitable resident parent – where the mother has no insight into her behaviour – where the child protection authorities will not intervene. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA |
| Mazorski v Albright (2008) 37 FLR 518 Tait & Dinsmore (2007) FamCA 1383 Godfrey & Sanders (2007) Fam CA 102 |
| Applicant: | MR BURNHAM |
| Respondent: | MS PARCH |
| File Number: | DGC 3660 of 2008 |
| Judgment of: | Judge Small |
| Hearing dates: | 30 March 2015 – 2 April 2015 & 9 April 2015 |
| Date of Last Submission: | 9 April 2015 |
| Delivered at: | Dandenong |
| Delivered on: | 3 July 2015 |
REPRESENTATION
| The Applicant: | In Person |
| The Respondent: | In Person |
| Counsel for the Independent Children's Lawyer: | Mr I. Brewer |
| Solicitors for the Independent Children's Lawyer: | Robert Halliday & Associates |
ORDERS
All previous parenting orders in relation to the child X born (omitted) 2003 are hereby discharged.
The parties shall have equal shared parental responsibility for the child.
The child shall live with the mother.
The parties shall attend the Parenting Orders Program at (omitted) Children's Contact Service and Parenting Orders Program, (omitted), telephone (omitted) (“the Program”) and shall contact the Program to make initial appointments within seven days of the date of these orders.
The parties shall comply with all directions of the staff of the Program and shall make every effort to come to an agreement about any time the child is to spend with the father.
Should the parties be unable to come to agreement about time to be spent between the child and the father after spending six months actively participating in the Program, and the child is not actually spending regular time with the father by that date, the child shall spend time and communicate with the father as follows:
(a)In school terms, subject to the father’s work roster:
(i)On each alternate weekend from 10:00 am to 3:00 pm on Saturday for four visits beginning on the first Saturday after the six month period has elapsed;
(ii)Thereafter on each alternate weekend from 10:00 am to 5:00 pm on Saturday for four visits;
(iii)Thereafter on each alternate weekend from 10:00 am to 8:00 pm on Saturday for four visits;
(iv)Thereafter on each alternate weekend from 10:00 am on Saturday to 10:00 am on Sunday for four visits;
(v)Thereafter on each alternate weekend from 10:00 am on Saturday to 2:00 pm on Sunday for four visits;
(vi)Thereafter on each alternate weekend from 10:00 am on Saturday to 6:00 pm on Sunday for four visits;
(vii)Thereafter on each alternate weekend from 6:00 pm on Friday to 6:00 pm on Sunday;
(b)In school holidays beginning in the second term holidays 2016 and subject to the father having leave from his employment:
(i)For one week in each of the school term holidays by agreement and failing agreement from noon on the first Saturday to noon on the second Saturday;
(ii)For two weeks in the long summer holidays each year by agreement and failing agreement from 6:00 pm on 31 December to 6:00 pm on 14 January, such time to commence in the 2016-2017 long summer holidays;
(c)For the child’s birthday each year from 4:30 pm to 7:30 pm on the evening before if the birthday falls on a school day and from 10:00 am to 2:00 pm in even-numbered years and from 4:00 pm to 8:00 pm in odd-numbered years if it falls on a non-school day;
(d)On the father’s birthday each year from 4:30 pm to 7:30 pm if it falls on a school day and from 4:00 pm to 8:00 pm if it falls on a non-school day;
(e)From 3:00 pm to 8:00 pm on Christmas Day in 2015;
(f)From 4:00 pm on Christmas Eve to 11:00 am on Christmas Day 2016 and in each alternate year thereafter; and from 11:00 am on Christmas Day to 6:00 pm on Boxing Day in 2017 and in each alternate year thereafter;
(g)At other times and venues by agreement between the parties from time to time.
If necessary, the child’s time with the father shall suspend on the following occasions:
(a)From 6:00 pm on the evening before Mother’s Day each year;
(b)On the mother’s birthday each year from 4:00 pm to 8:00 pm.
For the purposes of any time to be spent between the child and the father:
(a)The father is hereby restrained by injunction from smoking within 20 metres of the child and from allowing her to remain in the presence of any other person who is smoking;
(b)Changeover shall take place at an agreed venue and failing agreement at the Mc Donalds restaurant at (omitted).
The father shall be insubstantial attendance during all periods of time spent.
From the 2016 school year, the child shall attend a secondary school as agreed between the parents and failing agreement, the nearest state secondary school to the child’s residence.
The parties and their servants and agents are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of their families to or in the presence or hearing of the child, and from permitting any other person to do so.
The parties are hereby restrained by injunction from showing, reading, or interpreting any part of the court’s Reasons for Judgement to the child, or allowing any other person to do so, save to explain the Orders in paragraphs 6, 7 and 8 hereof.
Each parent shall be permitted to obtain from the child’s school, at his or her own cost, all school reports, notices, photographs and other like information usually provided to parents, and if the child is home-schooled by distance learning, the mother shall provide authority to the Distance Learning Centre Victoria to provide all such documents to the father at his cost.
Each parent shall be permitted to attend the child’s school events and extracurricular activities such as concerts, drama presentations, sports carnivals, sporting activities and the like, and each shall inform the other of his or her intention to attend no later than seven days prior to such events.
Each party shall notify the other as soon as practicable in the event that the child suffers a serious illness or injury while in his or her respective care, and shall authorise any medical practitioner treating the child to provide information to and consult with the other parent.
Each party shall notify the other of any change in his or her address or contact details within seven days of such change.
The mother shall attend upon her general medical practitioner (“her General Practitioner”) within 14 days and obtain a referral to a psychiatrist or clinical psychologist for treatment in relation to the matters raised in the psychiatric report of Dr P dated 20 January 2015, and shall inform the Independent Children’s Lawyer of the name and contact details of her General Practitioner this day, and the name and contact details of the psychiatrist or clinical psychologist to whom she is referred within 48 hours of her appointment with her General Practitioner.
The Independent Children’s Lawyer shall be at liberty to provide a copy of these Orders and Reasons for Judgment, the Family Report of Mr T, and the psychiatric assessment report of Dr P to the following:
(a)The mother’s General Practitioner
(b)The mother’s psychiatrist or psychologist
(c)The Parenting Orders Program at (omitted)
(d)The child protection authorities of the Victorian Department of Health and Human Services.
The appointment of the Independent Children’s Lawyer shall be discharged as from 3 March 2016.
IT IS NOTED that publication of this judgment under the pseudonym Burnham & Parch is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 3660 of 2008
| MR BURNHAM |
Applicant
And
| MS PARCH |
Respondent
REASONS FOR JUDGMENT
Introduction
X (“X”) is 11 years old having been born on (omitted) 2003. She lives with her mother, Ms Parch (“the mother” or “Ms Parch”) on the (omitted) and is currently schooled at home via the Victorian Department of Education’s distance learning program.
X’s mother believes that X suffers from the following ailments:
a) Asperger’s Syndrome (“Aspergers”)
b) Attention Deficit/Hyperactivity Disorder (“ADHD”)
c) Oppositional Defiance Disorder (“ODD”)
d) Obsessive Compulsive Disorder (“OCD”)
e) Anxiety Disorder
X’s father is Mr Burnham (“the father”). He has not spent any time with X since January 2013, he says because the mother has prevented him from doing so and has manipulated X into refusing to see him.
The mother denies that allegation, saying that X refuses to spend time with her father because of neglect and mistreatment by the father and his family, and that she finds it impossible to persuade her to do so. She says that X “melts down” and becomes extremely distressed and uncontrollable if she is forced to see Mr Burnham.
The issues in this case, as agreed between bar and bench at the beginning of the trial, are as follows:
A. Does the mother suffer from a psychiatric condition that impairs her ability to look after X?
B. Does the evidence the mother has provided about the father indicate a lack of capacity on his part to look after X in an appropriate manner?
C. How much weight should be given to X’s expressed wishes?
D. Has the mother alienated X from her father?
E. Where will X go to secondary school?
Background
The parties met in about 1998 and began living together in 2001 or 2002. They separated in 2004 when the mother left the relationship taking X with her.
X is the parties’ only child. She has lived with her mother since the parties separated and initially spent regular time with her father pursuant to Orders made in this Court in 2005 and 2009.
As stated above, X has not spent any time with Mr Burnham since January 2013.
The mother is 41 years old and is in receipt of Centrelink benefits and lives in rental accommodation on the (omitted).. She cares for X on a full-time basis. She deposes to being a qualified (occupation omitted).
The father is 48 years old and is a (occupation omitted) by trade. He has worked at (employer omitted) on rostered shifts for some 17 years. He lives with his parents and twin brother in his family’s home in eastern suburban Melbourne.
Procedural History
Previous proceedings
On 7 October 2009, Federal Magistrate Walters (as His Honour then was) made final parenting orders for X to live with her mother and spend time with her father, and the parties retained equal shared responsibility for X.
On 9 April 2013, the father filed an Initiating Application seeking orders restraining the mother from relocating X’s residence without the father’s written consent.
On 6 May 2013 the matter came before me for a Directions Hearing and final orders were made by consent on that day restricting the mother from relocating X’s residence more than 15 kilometres from (omitted). The orders of 7 October 2009 were otherwise stated to remain in full force and effect.
The Current Proceedings
The mother commenced these proceedings when she filed her Initiating Application on 21 May 2013 seeking to have the previous orders from 7 October 2009 and 6 May 2013 varied.
The mother filed an Amended Application on 17 July 2013 and a Further Amended Application on 18 July 2013. Those documents are difficult to decipher in terms of what the mother seeks, but she appears to be seeking orders that there be no time spent between the child and the father for the next two years, whereupon the child would be able to decide for herself as to whether she sees the father.
On 5 August 2013 the current proceedings came before the Court in the Duty List for the first time before Judge Curtain. His Honour made an order for the appointment of an Independent Children’s Lawyer, and for the parties to attend upon a Family Consultant for the purpose of a Child Inclusive Conference.
The father filed his Response on 16 August 2013. He sought that the Orders of 7 October 2009 and on 6 May 2013 remain in full force and effect, the appointment of an Independent Children’s Lawyer and the preparation of a Family Report.
On 16 September 2013 the parties attended on Family Consultant Mr M who conducted a Child Inclusive Conference, but the parties were unable to come to an agreement.
The parties came back before me on 3 October 2013 for a mention hearing following the Child Inclusive Conference. Variations to Orders for the father to spend time X were made, the mother was ordered to undergo a psychiatric assessment, a full Family Report was ordered, and the proceedings were set down for trial on 1 April 2014.
The matter returned on 24 February 2014 in the Duty List, the mother being absent from that hearing, and the only order made allowed the father to file his trial affidavit. A notation was added to the Orders to the effect that if the mother failed to attend at the next court hearing a warrant may be issued for her arrest.
On 1 April 2014 the matter was listed for Final Hearing but was not reached. It was adjourned for an Interim Hearing on 3 April 2014 as the proceedings were not ready to proceed to trial.
On 3 April 2014 an Interim Hearing was held and interim orders were made for X to spend increasing time with her father. The matter was then set down for Trial on a date to be fixed in 2015.
The mother filed an Application in a Case on 23 April 2014 seeking that “until further order the father and his immediate family be restrained from communicating, seeing, contacting or stalking, or taking or attempting to take the child X”. The mother also sort the order restricting her from relocating be discharged.
The father filed a Contravention Application on 9 May 2014 alleging the mother “refused to allow and did not encourage the child X to spend time with the applicant”.
The mother filed an Application in a Case on 22 May 2014 seeking the same orders as were in her Application in a Case filed on 23 April 2014 with an additional order “that the paternal grandmother, Ms K, be removed from present and future interim and final court orders regarding X”.
On 30 July 2014 the matter returned in the Duty List, and the mother was ordered to attend upon Dr P (“Dr P”) for a psychiatric assessment. A request was made to the Department of Human Services (“the Department”) pursuant to s.69ZW of the Family Law Act 1975 (“the Act”) to provide a report containing any information that they may have in their files concerning X, and an order was made for an updated Family Report by Mr T (“Mr T”).
The father filed a further Contravention Application on 22 September 2014 alleging “the Respondent and the child, X, failed to appear for changeover”.
The Mother filed a Contravention Application on 15 January 2015 along with an Application in a Case. The Contravention Application alleged the father “did not turn up for his visit to see X for his 1pm – 3pm time frame”. And the Application in a Case the mother sought to change X’s surname from “Burnham” to “Parch”.
The Family Report prepared by Mr T was released to the parties on 2 March 2015.
On 30 March 2015 the trial began before me and ran for 4 consecutive days, with evidence being adduced from the mother, the father, X’s treating psychiatrist Dr I (“Dr I”), and Dr P (by telephone). The matter was then adjourned part-heard to 9 April 2015 as a result of the unavailability of Mr T who was overseas. Mr T subsequently gave his evidence by telephone on 9 April.
All witnesses were subject to cross-examination by the parties and counsel for the Independent Children’s Lawyer and I reserved my decision after final submissions on 9 April.
Issues and evidence
A. Does the mother suffer from a psychiatric condition that impairs her ability to look after X?
The mother in this matter impresses initially as a dedicated and caring parent who wants nothing less than the best for her daughter.
She is intelligent and articulate and clearly loves X dearly. Indeed, one could say that X is the major focus of her life, sometimes to the exclusion of other life matters.
Ms Parch clearly genuinely believes that X suffers from the conditions set out above to a serious degree. She has sought assistance with X’s behavioural problems from multiple sources[1], although it was her evidence at trial that currently X is seeing only her general practitioner and Dr I, who is a child psychiatrist.
[1] In her Affidavit sworn 2 October 2013, the mother deposes that “X has been seeing specialists since she was four years of age…”
The mother has undertaken home schooling by distance education for X in circumstances where X’s violent behaviour at school caused her to be withdrawn from formal schooling at the school’s request in 2014.
Ms Parch’s evidence is that X had (and has) “melt-downs” which involve uncontrollable acting out behaviour leading to physical violence and self-harming behaviour at times, and it is clear from the evidence before the court that that behaviour is very real and very distressing for anyone coming into contact with it.
Ms Parch's Affidavit evidence is that X was diagnosed with Aspergers, ODD, and ADHD by Ms D, a psychologist (“Ms D”), in April 2013. She confirmed her belief in that diagnosis at trial. She said that Ms D had written a report in relation to X at that time, but that report was not tendered at trial and was not annexed to any of Ms Parch’s affidavits. I note that Ms D did not swear an affidavit in these proceedings and was not called as a witness[2].
[2] Ms D's report is referenced by Dr I in his report dated 27 March 2015 but her report is not in evidence before the court.
At trial, when questioned about Ms D’s diagnosis under cross-examination by counsel for the Independent Children’s Lawyer, Ms Parch acknowledged that Ms D had diagnosed X with Aspergers but that she had said only that she showed signs of ODD, slight separation anxiety and severe anxiety.
Some of Ms Parch’s behaviour during earlier hearings in the course of these proceedings, the tone and content of some of her Affidavit material, and her apparent lack of capacity to reflect on her own behaviour or consider any viewpoint but her own, led the court to order that she undergo a psychiatric assessment.
That assessment was carried out by Dr P, whose report is annexed to an affidavit sworn on 16 February 2015 and filed with the court on 10 March 2015.
In his report, Dr P sets out Ms Parch’s personal history and gives the following evaluation under the heading “Parental Capacity and Mental Health Assessment”:
109. I gave consideration as to whether or not the mother suffered from a diagnosable disorder of personality, and in my opinion the mother does not.
110. In my opinion there appears (sic) to be significant psychological problems in the mother, and while they do not meet diagnostic levels of clinical significance, they are a matter of significant concern. There are apparent inconsistencies in the mother’s behaviour and her actions. For instance, the mother’s history of the childhood abuse and the current close relationship with the claimed abuser is at odds with her heightened concern about sexual abuse of the child. The mother’s description of the sexually impotent father is at odds with her report of his predilection to sexual activity in its various forms. The mother’s list of the many psychological and psychiatric conditions suffered by the child is at odds to her home schooling the child, when specialist education teacher (sic) would be necessary and appropriate for such a disabled child. Such inconsistencies reflect the mother’s disturbed psychological state.
111. The presentation is that of the clinical syndrome of Munchausen by Proxy. The mother appears to believe that the child has a number of medical and psychiatric conditions, the effect of which is to cause a cloistering of the child away from usual social activities, and to be able to argue against access by the father. From a psychological point of view, the mother in this case is creating conditions in the child to satisfy her psychological needs to care and control the child’s life (sic).
112. The mother has a strong focus on physical illness and identifying such in the child but not in herself.
113. In my opinion, based on the history obtained, the findings on mental state examination and my review of the supplied documents, the mother’s parental ability and long-term parental capacity is impaired by psychological factors in the mother.
At trial, Dr P gave evidence by telephone and was cross-examined by both Ms Parch and counsel for the Independent Children’s Lawyer.
He said that the mother has a preoccupation with finding illness in her daughter and that she spends a lot of time in confirming that. He said that Ms Parch appeared to obtain satisfaction from the idea that X needs her to care for her.
However, Dr P was clear that there is no evidence that the mother is consciously, deliberately or maliciously fabricating illnesses in X in order to obtain that satisfaction. He described her as being “at the high end” of the continuum of Munchausen’s Syndrome by Proxy.
He confirmed his written evidence and opinion that X’s emotional and psychological welfare are at risk from the mother’s beliefs that she suffers from multiple conditions.
Dr P had read Mr T’s reports and stated that he thought it was significant that at the time of Mr T’s first report in 2009 the major issue of contention between the parties had been the father’s work roster and not X’s behaviour. He said that while it was speculation on his part, the reason for the change between 2009 and 2013 may have been the mother’s denigration of the father and her alienating X from him.
He was also surprised that the mother had not mentioned the father’s alleged sexual abuse of X in the 2008 – 2009 proceedings.
It was Dr P’s evidence that it was likely that the mother’s views would become more polarised and fixed over time.
The evidence of Dr I, who has been seeing X every three to four weeks for about two-and-a-half to three years, was contained in an affidavit sworn and filed on 27 March 2015. That affidavit was prepared at the request of the Independent Children’s Lawyer, who asked Dr I “to report on X’s health, being her history, diagnosis and prognosis”. Dr I wrote that he had been “asked to specifically comment on whether X has the diagnosis of ODD, ADHD and Anxiety Disorder”.
Dr I sets out some of X’s history as follows:
X developed language milestones within normal limits, she had no problems with separation from her mother or with toilet-training. She had some delay in gross motor skills development around age 4 - 5.
X’s early play was somewhat repetitive and not very imaginative. For example, when given crayons she would draw a simple spectrum of colours [as opposed to toys, animals, family members that are the normal subjects of children’s art].
Social problems became quite apparent as soon as X started school, which was our (omitted) Primary School in (omitted). She would “latch on” to one child and socialise exclusively with the child. She would repeatedly demand to visit that friend after school and talk about them endlessly. Some children found this annoying and would refuse to socialise with her. At the time I first met X, Ms Parch reported that her one friend was a boy who was quite patient with her and tolerated this attention. Behavioural problems appeared in 2012. X became increasingly unsettled in the classroom, she would refuse direction from teachers and run out of the classroom at irregular intervals, with minor or unknown precipitants. She would be upset when other children were loud or active, and would become angry when her friend spoke to other children.
X also had a narrow interest in dogs, and would talk about them at length. She did not appear to notice when the listener lost interest.
In 2014 her school behaviour deteriorated further, in the first day of term 1 she ran out of class to the staff room. Therein she was found to be holding a knife, but not trying to use it. When asked by the teacher she calmly put it down and returned to class. On the second day she ran to the chapel and when found by the teacher said that she wanted to die “so Mummy won’t have to worry about me”, but did not specify a desired means of suicide. On the third day she ran into the chapel again but did not express any suicidal wish. X had expressed a wish to die to Ms Parch on two occasions in the previous six months (i.e. late 2013), but did not try to hurt herself, and not at all over the school holidays.[3]
[3] The Report of Dr I annexed to an Affidavit sworn and filed 27 March 2015, page 5
Dr I says that information about X’s behaviour at school had been relayed to him by Ms Parch and that he had also discussed it with her teachers at a meeting he had with them at the school on 18 February 2014.
He reports that X was suspended by the school in March 2014 “as they felt unable to keep her safe at school” and that the school was reluctant to have her return.
Dr I goes on to say:
In April Ms Parch explained to me her decision to enrol X in distance education and I completed the form to enable this. She has been in distance education since then. X has some social contact with small groups of peers, which she can tolerate: she plays regularly with the neighbour’s children, attends a drama group and occasionally meets other children who do distance education or home schooling as part of an organised play group. Since stopping school X has shown much less anxiety and agitation, and has not expressed any further suicidal wishes. Her main ongoing symptom is compulsive rituals: she insists on picking up the family cat 5 times before bed and stroking it with the back of her hand. She will occasionally stroke other objects, often feeling the need to “brush back” an object that has bruished (sic) against her. I have seen her do this on several occasions. She will repeat a fixed phrase: “forget everything I said and did”, around once a day, more when stressed. X cannot explain what it means or who taught it to her. She does not describe obsessive thoughts.[4]
[4] Ibid
Under the heading “Opinion: Diagnosis” Dr I states the following:
My diagnosis is Asperger’s Disorder, as defined in the International Classification of Diseases, tenth revision wherein it has the code F84.5.
The basis is that she has poor social skills development, a history of little imaginative play, poor ability to sustain reciprocal conversation, focused interests, and some obsessive rituals: all of which are features of the disorder. Her slow gross motor skill development is also common in Aspergers. She does not have Autism because her language development is grossly normal.[5]
[5] Ibid p 5 and 6
Dr I goes on to say, under the heading “Other Diagnoses”:
I have been asked to comment on whether X has additional diagnoses of Anxiety Disorder, ODD (oppositional defiant disorder) and ADHD (attention deficit hyperactivity disorder). X has at various times displayed features of these, particularly her classroom behaviour could be considered defiant, and also “hyperactive” in that she would impulsively run out of the classroom. These behaviours, and her current compulsive rituals, are clearly driven by anxiety, particularly in busy social situations. My view is that Asperger’s Disorder is the best unifying explanation for her anxiety and all of her problematic behaviours; and so additional diagnoses are not necessary.[6]
[6] Ibid p 6
Dr I acknowledges other diagnoses made by Ms D and X’s general practitioner, but implicitly refers to the last sentence of the above passage in response to those diagnoses.
In relation to X’s prognosis Dr I says that her social skills having slightly improved:
“it is likely that she will follow the natural history I have often observed in Asperger’s Disorder: that social skills will further improve over her adolescence and so the key features of the disorder will attenuate. However she may still be behind her peers and social development for the next 5 – 6 years and so functioning in the high-school environment may be an ongoing challenge for her”[7].
[7] Ibid
When appearing in the witness box at trial, Dr I was very clearly uncomfortable. It was obvious and indeed explicit that he felt a conflict between his role as X’s treating psychiatrist and the position in which he found himself as a witness in legal proceedings regarding her.
Despite his obvious discomfort, Dr I answered all questions honestly and clearly and it is to be hoped that the experience will not adversely affect his future therapeutic relationship with X.
Despite the evidence of Dr P and Dr I, the mother continues to insist that X suffers from all of the conditions set out in paragraph 2 of these Reasons.
At trial, when giving evidence, the mother gave evidence which was inconsistent with previous statements she had made and gave the court cause to further question her psychiatric stability.
First, having given evidence that the father had sexually abused X when she was five years old, and that X was afraid of and now absolutely refused to have anything to do with the father, the mother said that she would allow X to travel to (country omitted) with the father if he should ever propose to take her to (country omitted). She said that visiting (country omitted) was “every child’s dream” and of course she would allow that travel, even if it were for 7-10 days. She would not, however, approve of X travelling to (country omitted) with the father because she had been there before, and in any event she did not want to spend time with the father.
Ms Parch did not seem to understand the fundamental inconsistency between those positions when it was put to her.
Second, the mother gave evidence that on 17 March 2015, some two weeks prior to trial, she had attended at (omitted) College, a private school on the (omitted), with X in order to see whether X might be enrolled there in the 2016 school year. The mother was excited and enthusiastic about the opportunities which might be afforded to X at (omitted) College, and it was her evidence that X had had an interview, that she had been enrolled, and that it was possible that she might obtain a scholarship later in 2015. However, she also said that she was aware that children already attending (omitted) College were given priority in the allocation of such scholarships.
It was her further evidence that she had not informed the father that she and X would be attending an interview at (omitted) College prior to that day, and that X had rung her father immediately after the interview in order to inform him that she had been accepted. There was apparently no answer to that call. X did communicate with her father a few days later to ask him to pay for her school fees at (omitted) College, that being the first time the father had heard of any plans for X to attend private school.
Under cross-examination by counsel for the Independent Children’s Lawyer, Ms Parch acknowledged that she had told X that the father would be helping to pay for her fees at (omitted) College. In fact, she conceded that she had told X she had been accepted at (omitted) College and that the father would be helping by paying the tuition fees. She further acknowledged that she had not discussed this with the father before speaking to X. I note that X had neither spent time with nor spoken to her father for over two years at that time.
Under further cross-examination, Ms Parch conceded that fees at (omitted) College were approximately $20,000 per year and that she would certainly not be able to afford those fees on her own as she is in receipt of Centrelink benefits.
She said that she had calculated that the fees would amount to about $450 to $475 per week if paid by instalments. She acknowledged that her pension alone would not cover those costs.
Either the mother has no conception of what her evidence means in terms of the parties’ ability to pay for a private school education for X, or she has acted in a very manipulative manner in building X’s hopes while setting the father up to be the scapegoat if he cannot afford those fees and X is unable to attend (omitted) College.
Either way, this episode raises serious concerns about the mother’s sense of reality.
Third, the mother filed two Affidavits sworn on 22 April May 2014 and 22 May 2014 which annex website downloads and coloured photographs, some of which are pornographic in nature in that they are explicit photographs of adults engaging in sexual acts. I will return to the content of those annexures in the next section of these Reasons, but the fact that Ms Parch thought it appropriate to annex them to an Affidavit raises serious questions about her judgment.
Fourth, having spent the entirety of these proceedings attempting to persuade the court that X should spend no time with her father, Ms Parch provided, as part of her final submissions to the court, detailed proposed orders which provide for X to spend gradually increasing periods of time with her father, albeit with no overnight time for at least another two years. Those orders are entirely incongruent with the mother’s evidence and applications, both written and oral, throughout these proceedings.
Finally, the mother’s evidence at trial, other than her determination that X suffered from all of the conditions set out in paragraph 2 hereof, was inconsistent with other evidence, and she was forced to concede the inaccuracy of her own evidence on several occasions.
For instance, Ms Parch had insisted to Mr M that X had undergone an internal examination at (omitted) Medical Centre after allegations of sexual abuse were made in about 2008. However, when shown the hospital notes of that occasion she was forced to concede that X had undergone no such examination. She said at trial that X had been too young to undergo an internal examination at the time. She did not seem to understand the contradiction in her evidence.
When she was confronted with evidence that contradicted her evidence about another occasion when she said blood had been found on X’s underwear, she simply said that the evidence about the blood was contained in another report, which was not before the court.
Quite separate to the above issues is the fact that Ms Parch has some psychiatric history, the police having taken her to (omitted) Hospital for psychiatric evaluation after an incident in mid-2010. It is unclear whether she was admitted at that time, with documents from the Department indicating that that might have been the case, and Ms Parch being adamant that she was co-operative and receptive to out-patient treatment at the interview and that the police had taken her home.
She was also ordered to attend upon a psychologist after being convicted of obtaining property by deception in October 2011.
In addition, it was Ms Parch’s evidence at trial that she suffers from OCD, and that she cleans the house for two hours every day. She said that her “whole family has it” (ie OCD).
She also claimed to have Bi-Polar Disorder, but under further cross-examination conceded that she had never been diagnosed with that condition.
On the basis of all the above evidence, while I cannot find that the mother suffers from a specific psychiatric illness, I find that she suffers from psychological vulnerabilities which affect her ability to be realistic in her perception of X’s condition and needs. I further find that those vulnerabilities impair her ability to appropriately care for X.
B. Does the evidence the mother has provided about the father’s behaviour indicate a lack of capacity on his part to look after X in an appropriate manner?
This question is raised by the mother’s assertion that the father sexually abused X when she was five, that he is obsessed with sex and is not fit to look after X. She says that X is at risk in the father’s care.
In relation to the sexual abuse allegations, the mother says that X returned from a period of time with her father when she was five years old saying “I don’t want my daddy’s wee wee in my mouth” and “my daddy touched my vagina”.
In an affidavit sworn 22 April and filed 23 April 2014 the mother says “this explains why X has despised her father ever since she was a toddler”; and “Mr Burnham has interfered with X as a toddler”.
X was born in (omitted) 2003, so these allegations relate to an unspecified date between (omitted) 2008 and (omitted) 2009.
There is absolutely no mention of any such allegations in the mother’s affidavits sworn 26 November 2008 and 5 October 2009 in the previous proceedings.
While I accept that the allegations reflect Ms Parch’s honestly held beliefs, she has provided no independent evidence that X was sexually abused at all, let alone by her father.
X was apparently examined by a doctor at the time of the alleged incident and no evidence of abuse was found.
The child protection authorities and the police investigated the allegations and took no further action.
In fact, a report from the Department, provided in response to the Notice of Child Abuse, Family Violence or Risk of Family Violence filed by the mother on 23 April 2014, states as follows in relation to the allegations made by the mother in September 2008:
The Sexual Offences and Child Abuse Investigation Team (SOCIT) were informed of the concerns. SOCIT members spoke with X and it was ascertained that X was referring to her urinating whilst having a shower and not wanting urine to get into her mouth. SOCIT were also told that Mr Burnham had a pornographic website of his own, however this was a “singles website” with pictures of himself being nude. SOCIT assessed that there was (sic) no concerns for X’s safety and ceased their involvement.
In addition, as mentioned, none of these allegations were raised during previous proceedings in this court in 2008-2009, at the very time that Ms Parch’s concerns had been raised with the Department.
In her interview with Mr T for the family report prepared for those proceedings Ms Parch complained that X did not spend enough time with Mr Burnham and there is absolutely no hint or mention of any sexual abuse of X perpetrated by her father, or indeed anyone else.
Under cross-examination by counsel for the Independent Children’s Lawyer in these proceedings, Ms Parch conceded that she was in a relationship at that time with a man who X called “Daddy”, but I can take no inference from that fact.
In light of all of that evidence, I cannot find either that any such abuse took place, or that X is at risk of sexual abuse by her father.
In relation to the father’s alleged obsession with sex, Ms Parch says that he is involved in “swingers” activities and that he habitually attends a nudist beach.
Annexed to her Affidavits sworn 22 April and 22 May 2014 are several photographs downloaded from the internet which purport to show Mr Burnham in several poses, some alone and some in company, some explicitly sexual in nature, some not. Some of the photographs show him standing naked at a nude beach on the (omitted) called “(omitted)”.
It must be said that in only one of the more explicit photographs, where Mr Burnham is depicted alone, is Mr Burnham’s face shown, and I can take no inference from others that do not show his face.
One of the annexures is an edition of the magazine “(omitted) Swingers” from (omitted) 2004 which contains explicit photographs of adults engaged in sexual acts. However, the only photograph purporting to be of Mr Burnham (Ms Parch has circled it) shows him in underpants and a leather vest with his arm around a young woman and a can of beer in his other hand.
Mr Burnham acknowledged at trial that he spent some time on adult websites and that he had posted photographs and engaged in communications with other adults via that medium. There is absolutely no evidence whatsoever that Mr Burnham has involved or attempted to involve X in any of these activities, and while Ms Parch might find them distasteful, there is nothing unlawful about them.
Indeed, Mr Burnham gave evidence at trial that he never used the computer to access adult websites when X was in his care.
He also acknowledged that (together with Ms Parch when their relationship was on foot) he has often spent time at (omitted) during the summer, although it was his evidence that he has spent less time there in recent years.
I note that when being cross-examined by counsel for the Independent Children’s Lawyer the mother admitted to having taken X to (omitted) herself in the years after separation. I do not consider that taking a child to a nudist beach is on its own an indicator of abuse or risk of abuse.
On the evidence presented by Ms Parch, I cannot find that Mr Burnham is a source of risk to X’s wellbeing.
However, under cross-examination by counsel for the Independent Children’s Lawyer, Mr Burnham admitted that he had been found guilty in the Magistrates Court of Victoria of obscene and wilful exposure on 7 July 2014 as a result of an incident which had occurred some months earlier in (omitted) in the Melbourne CBD.
It was his evidence at trial that he had been driving along (omitted) on a summer’s day when he was suddenly overcome by the heat and that he had taken off his trousers in order to put shorts on. He said that he was not wearing underwear on that day and that someone had happened to see him.
He said that it was not unusual for him to change his clothes in the car.
Under further cross-examination he said that his car had been moving at the time and he had been trying to reach a pair of shorts which were on the back seat. He denied that he had been masturbating, which is the allegation made by the person who saw him and which formed the basis of that person’s complaint to police.
When asked why he had not waited until he arrived at his workplace (which, I note, is located only a few blocks from where the incident took place) to change, Mr Burnham said simply that he had not realised how hot it was.
I find his evidence in relation to that incident entirely unconvincing.
As a result of those court proceedings he said that he had had to pay $800 into the court fund and that the matter had been adjourned to July 2015.
When asked why he had made no mention of this guilty finding in any material before this court, Mr Burnham said that he had not thought it relevant, despite Ms Parch’s allegations of sexual abuse in relation to X being a live issue in these proceedings.
On the basis of that evidence, I find that on balance, Mr Burnham’s sexual proclivities are somewhat unusual and that there may be some cause for concern about his judgment about the kinds of behaviour that are appropriate in public.
However, I cannot find that those behaviours constitute a direct or immediate risk to X.
C. Has the mother alienated X from her father?
The fact that X is alienated from her father is not a matter in dispute in these proceedings. She has refused to see him, she has told Mr T that she does not wish to see him, and her behaviour at aborted changeover events indicates that she is very firm in that position.
The question in these proceedings is why X has become alienated from her father.
As previously stated at paragraph 46 above, Dr P speculates that it is possible that Ms Parch has been active in causing that alienation.
X was seeing her father regularly between the time when orders were made in previous proceedings in October 2009 and January 2013.
During the previous proceedings Mr T prepared a family report[8] which stated that the major issue between the parties at that time was the inconsistency of time spent between X and her father necessitated by the father’s irregular work roster.
[8] Dated 15 April 2009
There was no suggestion in that family report that there was anything amiss in the relationship between X and her father.
Indeed, Mr T says the following in that report:
26. X was observed in each parent’s household. She presented as a somewhat shy but engaging five-year-old. She related easily with each parent and would interact in a comfortable and relaxed manner, initiating involvement in making request (sic)as appropriate.
27. X also related easily to her paternal grandparents and was particularly fond of “(omitted)”[9].
28. There was little concern raised by either parent about X’s level of comfort and connection in either household and in the writer’s observations X was “at home” in each environment.
[9] (omitted) is the Burnham’s family dog
The only criticism made of Mr Burnham in the context of caring for X was that he allowed her to be exposed to passive smoke in his home where the adults were smokers. Mr T recommended at that time that an order be made restraining Mr Burnham from exposing X to people who were smoking.
As has already been stated, final orders were made (predominantly) by consent on 7 October 2009, those orders being entirely unremarkable in their content save for the detail necessary to accommodate the father’s work roster. There was no restraint on the father in those orders in relation to exposing X to passive smoking.
The evidence before the court in these proceedings indicates that those orders were followed, with X spending regular and extended time with her father, until January 2013. There was some evidence that time was not always consistent during that period, but no more so than is often alleged in this court.
In September 2011 X contracted school sores, a form of the herpes virus, allegedly from Mr Burnham.
Mr Burnham admitted that he had the virus, and it was his evidence that his doctor had told him that he had probably contracted it from a contaminated sheet of glass at his workplace. He had advised Ms Parch that he would be unable to care for X until the virus had passed as it was highly contagious.
Ms Parch refers to X’s school sores as “this sexually transmitted disease”[10] and she alleges that the virus “flares up constantly with the stress (X) experiences regarding her time spent with Mr Burnham and his family”[11]. She annexes to her affidavit sworn 22 April 2014 and filed 23 April 2014, photographs of X’s body showing the school sores.
[10] The affidavit of Ms Parch sworn and filed 22 May 2014 paragraph 6.
[11] Ibid.
In paragraph 9 of that affidavit Ms Parch states that “X would be returned to me after every visit from September 2011 with this recurring rash and sores all over her buttocks”. She says that when she brought the rash to Mr Burnham’s attention he dismissed it, saying that it was an allergic reaction and was the result of X playing in the grass.
The mother then deposes as follows:
10. This rash and spots became a recurring event from September 2011 up to January 2013 when X demanded not to see him[12] ever again as she was so sick of being neglected from this family (Mr Burnham and Ms K[13] (sic)). X constantly told me she had to fend for herself. And Ms K wouldn’t allow her to use her own toiletries I had provided for X for some 9 years.
[12] Emphasis in the original
[13] Ms K is X’s paternal grandmother.
Ms Parch sought an intervention order against the paternal grandmother on the basis of her alleged “continuous neglect towards X in their care”, but that application was dismissed in the Magistrates Court.
Later in the same affidavit the mother states as follows:
Mr Burnham clearly cares more for his disgusting lifestyle than caring for his Daughter’s wellbeing. To bring this disease into his Daughter’s life is unforgiveable. It explains everything. From why X has had a distant and odd relationship towards her father her sheer hatred towards him and fear to be around him (sic).[14]
[14] The affidavit of Ms Parch sworn 22 April and filed 23 April 2014, paragraph 19.
It is Ms Parch’s evidence that she provided the father and his family with information about the herpes virus and how to treat X, but that they had not followed her directions.
It is clear from correspondence annexed to the affidavit of the mother sworn 22 and filed 23 April 2014 that the treatment of X’s school sores in her father’s home was an issue between the parties from at least mid-2012.
No independent evidence was adduced at trial in relation to X having school sores, but that fact was not in dispute and it can be noted that such infections are notoriously highly contagious.
Regardless of where X actually contracted the virus, it is clear that Ms Parch blames Mr Burnham and that she genuinely believes that X caught the virus from her father.
That belief, whether based in reality or not, appears to have been the catalyst for such a deterioration in the parties’ relationship that by January 2013 X was refusing to spend time with her father.
From all the evidence found in the mother’s affidavits and from my observations of her both at the bar table and in the witness box at trial, it is apparent that when she comes to believe something as fact, that belief quickly becomes absolute truth for her, and she is unable to be dissuaded from it.
If Dr P is correct in his statement that Ms Parch presents with some of the traits of Munchausen by Proxy, it would not be unexpected that in her mind the relatively common phenomenon of children developing school sores might be exaggerated to the point where she is certain that X caught the virus from her father, and that Mr Burnham caught it as a result of what Ms Parch sees as his “disgusting” and “promiscuous” lifestyle.
That belief might well have contributed to Ms Parch’s ultimate belief that X is at risk from her father. X cannot help but have been influenced by her mother’s views on that issue.
In September 2013 the parties and X attended upon Mr M, Family Consultant (“Mr M”), for the purposes of a Child Inclusive Conference.
The memorandum prepared by Mr M as a result of that conference makes a number of observations which cause the court considerable concern.
At that time the mother was seeking orders which would have greatly reduced the amount of time X would spend with her father when compared with the provisions of the orders of 2009. Mr M states:
When asked on what basis such an order could be justified given the child had been spending such significant time with her father previously the mother was unable to answer other than to say the father’s relationship with X is “unnatural” and “distant”. She said the child “is showing signs of being (sexually) abused” and advised that in October 2008[15] the child underwent an internal examination of (omitted) Medical Centre to investigate whether any such abuse had occurred. The mother advised that she is an incest survivor and it is from this perspective she adamantly believes X has been “tampered with”. She said X’s hatred of her father is so strong it scares her.
[15] I note again that no mention of this alleged examination was made in the mother's affidavit sworn 26 November 2008, only one month after the alleged fact.
Mr M also reports that the mother had advised him that she was “anti-men” and that she had asserted that X had not wanted a relationship with her father since she was four years old.
He further reports:
The mother made a number of comments during interview that would indicate she has spoken to X about parenting arrangements and issues relating to the father, including the matter of her name. She said “I don’t lie to my child”. She also said that she had told X “We’ve waited for 10 years for this (to stop time with the father) haven’t we sweetie?”
At trial, Ms Parch gave evidence that when she had made that last statement she had meant that she and X had waited 10 years for X’s voice to be heard in relation to her feelings about her father.
Mr M’s report concludes as follows:
Like her mother X presented as a confident and assertive person. She repeatedly demanded to be able to get her diary from her mother but was told she would be able to do this towards the conclusion of the interview. She made it clear she hates her father and never wants to see him again. X repeated many of the concerns previously raised by her mother and confirmed that they had discussed parenting arrangements “quite a bit”. She said her mother is her “full-time carer” thereby giving the impression she knows she is a needy child.
It was evident that X is strongly aligned with her mother and spoke only in negative and spiteful terms about her father. She reported only ever doing fun things with her mother and never with her father. She expressed anger that her father attended her first Communion and comes to the mother’s house to collect her when she does not wish to go with him.
X wants no time with her father, including supervised time. The first of her three wishes was to never see her father again. After her mother signed her out of the child care room X was heard to ask her mother “Did we win?”
Ms Parch and X did not attend upon Mr T for the first family report ordered in these proceedings in February 2014. Mr T reports that he had contacted Ms Parch both by telephone and by letter to inform her of the appointment time, and that she had contacted him and “informed him that she would not attend the appointment unless he were to arrange a homevisit (sic). The writer was unable to accommodate the request at that time”.
A further family report was ordered on 30 July 2014.
At the interviews for that report, Ms Parch stated that because (allegedly) Mr Burnham had not attended for changeover so that X could spend time with him, “now I am adamant that I want Mr Burnham out of her (X’s) life… and she agrees”.
She is reported to have further stated:
X hates her father… she was so anxious about (the) meetings… imagine the trauma… the damage.
And further:
She has always hated him… her relationship with her father has always been like that.
When considered as a whole, the above evidence leads me to a finding that the mother’s beliefs about the father’s lifestyle and his alleged abuse of X have contributed significantly to X’s alienation from him.
That is not to say that Ms Parch has deliberately and maliciously attempted to alienate X from her father, but that her tendency to exaggerate X’s symptoms and overdramatise the severity of any condition she might suffer from, has led her to influence X, either consciously or unconsciously, in a way that has led to her being alienated from her father.
Ms Parch lacks any insight into the impact of her beliefs and behaviour on X, and the evidence of Dr P indicates that without long-term psychotherapy, she is unlikely to be dissuaded from her views.
D. How much weight should be given to X’s expressed wishes?
X is eleven years old and will turn twelve in (omitted) this year.
She has been diagnosed as being at the high-functioning end of the Autism Spectrum, and she has displayed certain aggressive and even violent and self-harming behaviours that have caused great concern not only for her mother but in her previous school environment.
Mr T describes her thus:
54. She presented as a lively, bright and energetic young girl but her emotions fluctuated during the interview. Despite her mother alerting the writer to X’s high level of anxiety about the interview, she appeared to be easily engaged and although somewhat nervous, not, in the writer’s opinion, in any sense that appeared to overwhelm or debilitate her. She also appeared to become more relaxed as the interview progressed despite her emotional shifts.
55. When she sat down and was initially asked what she thought the interview was for, X immediately “launched” into a long monologue. She stated; “because my dad was very mean to me and neglected me and abused me and smoked in my face in the car and didn’t give me baths and gave me lots of junk food for dinner like Up & Goes and Maccas and Hungry Jacks… made me constipated… and didn’t look after me and stuff and never came to McDonald’s… [apparently for the recent changeovers]… I just hate my dad so much because he doesn’t do all that for me”.
And later:
60. In describing this X began to cry stating “they never used to take care of me or anything”.
Mr T comments that “it is noted that the emotion that accompanied the tears appeared to be of little intensity and she appeared to skip to a different topic with ease”.
He further reports:
62. When asked what she thought may occur if she did see her father, X replied “my mum would be sad and I would be upset” and she appeared to regress to a younger child mode (in behaviour and tone of voice) and began a similar litany of what her father had not done for her and that “I hate him so much”, and, “I hate him so much I wish he would die”.
Mr T reports his concerns about X’s behaviour at interview as follows:
78. First, when talking of her father she would be anxious at times and also regress to a way of talking and posture that represented a much younger age.
79. Second, on two occasions X cried when discussing how badly she believed she was treated at her father’s. However, on both occasions, the tears were very short lived, lacked an emotional depth and appeared “forced”. She also immediately brightened to the next topic without any apparent difficulty.
80. Third, X repeated several times a sort of “litany” of uncaring things her father (or his family) did, which included a lack of bathing, unwashed sheets, smoking and unhealthy food. This appeared more like “recitation” and also was expressed, in the writer’s opinion, without an accompanying emotional connection. They also appeared to be aspects of care that would not usually be the sort of aspects most focused upon by a young child who was having difficulties with, or angry towards parent.
81. While it is understood that X has been diagnosed with Asperger’s syndrome (and the writer is unclear where she would sit on the spectrum) she displayed a warmth and what the writer would consider appropriate emotion in discussing other aspects of her life.
82. In saying all of this, the writer is concerned about the nature of this child’s account and believes she is likely to have been highly influenced by her mother. The writer is further concerned about other reported problems that X apparently has, as described by the mother, including Aspergers, ADHD, anxiety disorder and ODD.
Mr T referred then to Dr P’s report and to Dr P’s statement that the mother “appears to have at least facilitated the alienation of the child from the father”.
Mr T then says that he “struggles with regard to substantiation and questions where these allegations (ie the allegations of sexual abuse) were in previous proceedings”.
As I have already found, X has been alienated from her father by a concerted and persistent campaign by her mother to permanently remove him from her life.
In all of those circumstances, I do not believe the court should give any great weight to X’s expressed views, despite her age.
F. Where will X go to secondary school?
This question is not easily answered.
None of the witnesses called at trial is an educational expert and the court has only the evidence of the parties, Dr I, Dr P and Mr T before it. Of the expert witnesses only Dr I addressed this issue specifically.
His report says that given X’s history she “may still be behind her peers in social development for the next 5-6 years and so functioning in the high-school environment may be an ongoing challenge for her”[16].
[16] The report of Dr I dated 27 March 2015, final paragraph.
Under cross-examination from counsel for the Independent Children’s Lawyer at trial Dr I said that most children with X’s level of Aspergers are in mainstream schools.
When asked whether it would be better for X to be in a mainstream school he said it would be hard to say and that her history “sets her apart from her Aspergers peers”.
He said that going back to school would be extremely stressful for X. He said further that he had told Ms Parch that she should be slowly reintroducing X to mainstream high school. It was his view that X should attend school part-time, attending for her favourite subjects at first, and then increasing by slow increments to full-time over the school year. He said that it is his experience state schools were usually able to accommodate such an arrangement.
Dr I said further that the management team of any school proposed for X should meet her and that there was “no clinical way to distinguish between schools”.
Ms Parch wants X to be homeschooled in 2015 for the remainder of her primary school years and to begin high school at a private school in 2016.
Mr Burnham simply wants X to be happy at school, and for her to be learning academic and social skills in that environment.
From the reports from the Distance Learning Centre Victoria tendered at trial, X was progressing well in 2014, her best subjects being (omitted) and (omitted).
Ms Parch gave evidence at trial that X attends a social group with other children who are being home schooled and that she is also involved in extracurricular activities such as ballet and swimming.
In those circumstances, and the 2015 school year being at its halfway point, I do not propose to make an order that X continue her final year of primary education at a local school in the third term. She should be allowed to complete her primary school studies via the Distance Learning Centre Victoria.
In 2016, X should attend a mainstream high school, whether private or public, and her transition to a more normalised kind of learning should be gradual as recommended by Dr I.
Ms Parch’s aspirations for her daughter are admirable, but unfortunately it is abundantly clear that without a scholarship, X will be unable to attend private school, as her parents’ incomes do not allow for a private education. On the evidence before the court, Ms Parch’s proposal that Mr Burnham pay for X’s private school fees is simply unrealistic and is a symptom of her psychological vulnerabilities.
In those circumstances I find that it is appropriate, on balance, for X to attend a mainstream high school in 2016, that school to be decided by the joint agreement of her parents. That way, if X obtains a scholarship she may be able to attend (omitted) College. If her parents are unable to decide on the school that X should attend in 2016, she should attend the high school nearest to her home.
Once a school is decided upon, X and her parents will need to attend the school to discuss any special needs she has with the school’s management team, particularly in relation to her gradual transition from home schooling to external education.
The Law
The law in relation to parenting matters is found in Part VII of the Act.
Section 60B(1) sets out the objects of the Act. These are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying these objects, which are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA states that when making parenting orders in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for him/her.
Pursuant to subsection (2) of s.61DA, the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence.
I have already found that there are no grounds to believe that Mr Burnham has engaged in sexual abuse of X.
Ms Parch’s affidavit material contains allegations of Mr Burnham’s infidelity and verbal abuse throughout the relationship between the parties, and she alleges that Mr Burnham forced her to call X by that name when she would have preferred to call her “X”.
She also alleges that Mr Burnham behaved aggressively in X’s presence at changeover in the year immediately after separation and that he has continued to act aggressively and abusively towards her.
Mr Burnham denies these allegations.
Ms Parch has made application for several Intervention Orders against Mr Burnham over the years, none of which appears to have proceeded to final hearing.
She first obtained an Apprehended Violence Order (“AVO”) against Mr Burnham while she and X were living in New South Wales in the immediate aftermath of separation in 2004.
In the two affidavits she filed with this court in the 2008 – 2009 proceedings, Ms Parch makes reference to the AVO but does not allege any further violence by Ms Parch.
In her affidavit sworn and filed 2 October 2013 in these proceedings, Ms Parch makes reference to an intervention order she had “placed on” Mr Burnham in 2009 but no copy of that intervention order is annexed to that affidavit.
Ms Parch then made a further application for an intervention order on 9 May 2013, which I note was just three days after orders had been made by consent in this court restraining her from relocating X’s place of residence.
An interim intervention order was made ex parte on that day and the application and summons in relation to that order alleges that Mr Burnham had “stormed into my house” in “late 2011” and forcibly and violently removed X from a cupboard where she had been hiding from him. This alleged incident occurred on a day when X was to spend time with Mr Burnham pursuant to the orders of this court and is identical to that described as the basis for the intervention order Ms Parch says she “placed on” Mr Burnham in 2009. Ms Parch repeats that evidence, but without specifying the date, in her affidavit sworn and filed 21 May 2013.
The court is unaware whether a final intervention order has been made in those proceedings.
Mr Burnham denies having violently removed X from her home on any occasion, and while he concedes that the parties argued frequently, and that there were angry verbal exchanges at some changeovers, he further denies all other allegations of family violence made by Ms Parch.
Clearly there have been incidents of verbal aggression between the parties both during the parties’ relationship and since separation. However, I cannot find on the basis of the evidence before me that either parent has committed family violence as defined in the Act on the balance of probabilities.
I therefore find that the presumption found in s.61DA applies.
Pursuant to subsection (4) of s.61DA, the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In this case, while Mr Burnham has not shown any particular initiative in seeking to be involved in decisions about X’s life, it is abundantly clear to the court that Ms Parch has excluded him from those decisions.
She has made decisions about X’s life, health and education without regard to Mr Burnham, while blaming him for not being interested in such matters.
It was Mr Burnham’s clear evidence at trial that he wishes to be involved in such decisions, that he will be in contact with X’s treating professionals, and that he wishes to be involved in any decision about her schooling. It has yet to be seen whether Mr Burnham is able to follow through in relation to those matters.
Nevertheless, in circumstances where I have found that the mother has psychological vulnerabilities which affect her ability to properly care for X, and where she has engaged in a regime of alienation of X from her father, I find that the presumption has not been rebutted, and that it is in X’s best interests for her parents to equally share parental responsibility for her.
Section 60CA of the Act states that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC then sets out the factors the court must consider when determining what is in the child’s best interests. I will address each of these factors in turn.
Section 60CC(2) sets out to “primary considerations”. These are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The definition of “a meaningful relationship” has been discussed in many cases coming before this court and the Family Court of Australia.
In Mazorski v Albright (2008) 37 FLR 518, Brown J said at paragraph 26:
a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In Tait & Dinsmore (2007) FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders (2007) Fam CA 102 between an optimal relationship and a meaningful relationship, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
That is, in the context of this case, if the relationship between X and her father can be said to be (or at least have the potential to be) important, significant, valuable, healthy, worthwhile and advantageous to X, and Mr Burnham is able to “lead by example” in that relationship, then the benefit to X in developing that relationship must be a primary consideration of the court in considering what is in her best interests.
Currently of course, there cannot be said to be any relationship between X and Mr Burnham. They have not seen each other for some two-and-a-half years and X has been adamant that she does not wish to have any kind of relationship with her father.
It must be said that Mr Burnham has not historically behaved in a way that augurs well for him having a meaningful relationship with X. He has not taken the initiative in becoming involved with her treating medical practitioners or her schooling. Simply put, he does not seem to be in possession of a particularly proactive personality.
However, he has persisted with the current proceedings over a period of some two years in the face of Ms Parch’s behaviour in alienating X from him, and X’s consistent denials of wishing to have anything to do with him.
If nothing else, that indicates a commitment to a relationship with X in the long term.
If Mr Burnham is ever to have a meaningful relationship with X, he will need to “step up” and take a more active role in her life which extends beyond the limited time he spends with her. Only then, and only if he is able to provide the role model described by Cronin J, could it be said that such a relationship would be beneficial to X.
In relation to the provisions of s.60CC(2)(b), I have found that X is at some emotional and psychological risk from her mother’s unrealistic and, at some level, fanciful beliefs about her health needs and her future education.
I have found that X is not at immediate or direct risk of harm from her father, although, on the basis of the evidence in relation to his sexual behaviour, the court has some concerns about his judgment.
Overall, the evidence in this case leads the court to find that provided that Mr Burnham can display the capacity to understand and undertake his responsibilities as X’s parent, there is a benefit to X in having a meaningful relationship with him, and that benefit is not outweighed by any evidence that there is a need to protect her from harm at his hands.
Section 60CC(3) then sets out the following “additional considerations”:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
I have already discussed the issue of the weight that I should give to X’s views in paragraphs 153 to 163 above and will not repeat that discussion here.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
The relationship between X and her mother is close, warm and affectionate. However the evidence of Dr P, Dr I, Mr M and Mr T indicates that that relationship is perhaps over-enmeshed.
The lives of many parents can be said to revolve around those of their children without any adverse comment being made, but in this case it is the extent and intensity of Ms Parch’s focus on X’s disabilities, and her inability to understand or accept that her beliefs are not supported by independent evidence that cause the court concern about the nature of that relationship.
X does not currently have any relationship with her father, and sees him as an object of hatred and risk to her. I have already found that a significant cause of X’s feelings about her father is her mother’s alienation of her from him.
It is to be hoped that with consistent psychotherapy the father and X will be able to develop a healthy, close and appropriate relationship.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child and the
The mother has made most of the decisions about major long-term issues in relation to X’s life since the parties separated when X was still a baby, and, Ms Parch would say, since before that separation.
Unfortunately, some of those decisions, and particularly the decision not to include Mr Burnham in X’s life, have been made on the basis of rigidly held but unrealistic beliefs.
I have already mentioned Mr Burnham’s failure, at least historically, to be proactive in participating in decisions about X’s life and development, but I accept that at least over the course of these proceedings, he has been prevented from doing so by Ms Parch’s determination to actively exclude him from such decisions.
X has lived with Ms Parch all her life and currently, she essentially spends 24 hours a day in her mother’s presence. It could never be said that Ms Parch had not taken every opportunity to spend time with X, although that situation may have been to X’s detriment given Ms Parch’s psychological vulnerabilities.
Mr Burnham’s attempts to spend time with X have a somewhat chequered history.
He did not file contravention proceedings in response to Ms Parch’s alleged failure to provide X so she could spend time with him until 6 December 2013, some 11 months after his regular time with X had ceased.
When he did file proceedings, on 9 April 2013, he sought only orders restraining the mother from relocating X’s place of residence more than 100 km from the Melbourne GPO.
It was the mother who initiated the current proceedings seeking a variation of the orders of October 2009.
Nevertheless, once the mother did file her application, Mr Burnham has persisted in his attempts to spend time with X in circumstances where some parents have been known to walk away from court proceedings and from their children.
Ms Parch alleges that when orders have been made in the course of these proceedings for X to spend time with her father, Mr Burnham has not attended at the changeover point.
Mr Burnham denies that allegation and in his affidavit sworn and filed 22 September 2014 he sets out multiple attempts to spend time with X by attending the changeover point at the McDonald’s restaurant at (omitted). He annexes to that affidavit some dated and time-stamped receipts from McDonald’s in support of that evidence.
He confirmed that evidence at trial and tendered the receipts.
The evidence before the court makes clear that Mr Burnham has made considerable attempts to spend time with X over the years, and that while there have been times when he has not pursued that issue as vigorously as he might have, his persistence with these proceedings indicates a continued desire to do so.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Ms Parch has supported X to the best of her ability throughout X’s life.
She has complained at times that Mr Burnham has not contributed to certain expenses, although it appears that he has paid child support consistently pursuant to the assessment provided by the Department of Human Services (Child Support). He has also contributed extra monies when needed, including paying for X’s braces and making regular contributions to Ms Parch’s rental costs.
Neither parent can be said to have been negligent in their commitment to provide financial support for X.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
I do not propose to make orders changing X’s residence or primary care arrangements.
However I have considered the likely effect on her of the change in her circumstances that will result from the orders I do propose to make in relation to the time she spends with her father and to therapeutic issues.
X’s response to such changes is currently unpredictable, although if past history is any guide, it is likely that she will resist spending any time with her father unless her mother supports such an arrangement.
In an attempt to provide appropriate circumstances for that change to take place, I will make an order that the parties and X attend the Parenting Orders Program in their local area so that they might obtain professional assistance in fostering a future relationship between X and her father.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
While the distance between the parents’ homes is significant at about 67 km, that fact alone does not seem to have contributed to the difficulties experienced by the parties in this matter, despite the fact that it has been the father who has undertaken the majority of the transport.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
There is no evidence before the court that either party lacks the capacity to provide for X’s needs in the material sense.
The mother alleges that the father and the paternal grandmother have neglected X’s care when she has spent time in their home but that allegation is denied, both in affidavit material and in oral evidence before the court.
Ms Parch has shown herself able to provide for X’s intellectual needs in that she has supported her in her education by distance learning since X was asked to leave her primary school.
It is in the area of support for X’s emotional and psychological needs that the court has grave concerns about the mother’s capacity.
I have already found that she has psychological vulnerabilities which lead her to believe that X suffers from multiple disabilities for which there is little or no expert evidence or support.
Dr P’s evidence indicates that the mother’s insistence on continuing to assert those beliefs may reflect a psychological need on her own part to be “needed” to care for X, and a kind of perverse psychological satisfaction in being so “needed”.
Having had the opportunity to read the mother’s affidavit material and to see her in the witness box and at the bar table, I accept that evidence.
I also share Mr T’s concerns about the mother’s capacity to meet X’s emotional and psychological needs.
However, I also have some concerns about the father’s capacity to meet his daughter’s emotional and psychological needs.
The fact that he accesses adult websites on its own is not necessarily a cause for concern, but when combined with the recent guilty finding for wilful and obscene exposure in the circumstances set out in paragraphs 103-112 above, it would appear to indicate a concentration on his own needs that might interfere with his capacity to meet X’s emotional needs.
It is to be hoped that the orders I propose to make in relation to the parties’ attendance at a Parenting Orders Program might provide Mr Burnham with further insight into his responsibilities in this regard.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The fact that X suffers from Aspergers, albeit at the high functioning end of that spectrum, combined with what I have described as her over-enmeshed relationship with her mother, has led to X’s social skills being delayed, which in turn has impacted on her maturity.
Mr T’s description of X’s regressive behaviour leads me to believe that while she may be academically bright, she is emotionally immature for her age.
The emotional maturity of her parents is also of concern to the court, with Ms Parch demonstrating rigid beliefs and unrealistic expectations about X’s future.
I also note in this regard that at 48 years of age, Mr Burnham lives with his parents, and has done so for some time, despite having been securely employed at a significant salary for some 17 years. Ms Parch believes that that is a reflection on his level of maturity.
There are no particular cultural issues that the court is aware of that may have an impact on X’s best interests.
There is no doubt that X’s experience of Aspergers means that she currently has some special needs. She may require an educational aide if she is to attend a mainstream school for instance. However, Dr I’s opinion that those needs are likely to decrease over time as X matures provides some confidence that her need for special treatment may attenuate in future.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
This is not a relevant consideration in these proceedings.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
There is no question that Ms Parch is devoted to X and her welfare. Indeed, X is at the very centre of Ms Parch’s life and she has dedicated herself to ensuring that X knows that she is loved and that her mother has her best interests at heart.
Ms Parch takes her responsibilities as X’s parent extremely seriously - it could be said that the fulfilment of those responsibilities is her prime motivation in life - and there can be no criticism of her conscious attitude either to X or to her parental responsibilities.
Unfortunately, Ms Parch’s psychological vulnerabilities, to which I have referred earlier in these reasons, cause her to place perhaps too much focus on X’s disability/health needs so that unconsciously, she behaves in such a way that she fails to fulfil her parental responsibilities to the optimal level.
As has already been stated, Mr Burnham’s attitude to X has always been that he wishes to have an appropriate father-daughter relationship with her.
While he has not always fulfilled his responsibilities as X’s parent in the sense that he has not been proactive in being involved with her treating practitioners or her school, he has shown a persistence throughout these proceedings which demonstrates his commitment to her welfare.
He is by no means a perfect father, and I note that he does not seek to have X live with him, but he clearly loves his daughter, and shows some insight into her educational needs.
(j) any family violence involving the child or a member of the child’s family
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
I have discussed the issue of family violence and intervention orders in paragraphs 184 to 197 of these Reasons and will not repeat that discussion here.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
This is the third set of proceedings between these parties in relation to X’s care arrangements.
The mother has shown herself either unable or unwilling to comply with court orders in the past.
Both parties have been applicants in proceedings before this court.
There are only two possible scenarios which are unlikely to lead to the institution of further proceedings: first, if the parties and X respond positively to the therapeutic intervention of the Parenting Orders Program and time between X and her father becomes a routine and ongoing occurrence; and second, if Ms Parch continues to put obstacles in the way of X’s relationship with her father and Mr Burnham gives up his pursuit of that relationship at some time in the future.
On the expert evidence before the court, the latter scenario is likely to lead to X suffering serious emotional and psychological problems in later life and it is to be hoped that it is the former scenario which will play out as it is intended.
If it does not, there is every chance that these parties will be back before the court in future.
(m) any other fact or circumstance that the court thinks is relevant.
Mr Burnham has had to struggle against many obstacles over the years in order to seek a relationship with X. Some of those obstacles have been of his own making, and some have been the result of Ms Parch’s irrational beliefs.
There does not appear to have been any psychotherapeutic intervention with this family which involves all family members, although both Ms Parch and X have seen multiple practitioners over the years.
The Parenting Orders Program provides an expert therapeutic environment for dealing with cases such as this, where a child has been alienated from a parent.
I will therefore make orders that the parties attend such a program with X.
There is no certainty that involvement in that program will lead to a workable relationship developing between these parents, but I am not prepared to concede that such a relationship is impossible without all avenues having been followed to their ends.
X deserves the chance to develop an appropriate relationship with her father - indeed she has the right to that relationship under the Act - and it is to be hoped that with appropriate professional assistance she may eventually be able to have a meaningful relationship with Mr Burnham.
I will place some time limits on that process so that if no progress is made, there is gradually increasing time spent between X and her father, in a similar regime to that proposed by the mother in her final submissions.
Conclusion
The jurisdiction of this Court does not include care and protection powers such as are held by the various States’ Children’s Courts. While it has the power under the Act to make orders about where a child shall live as between the parties to the proceedings, it has no powers to order State-based child protection authorities to take any action whatsoever, let alone to remove children from the care of their parents.
In situations such as these, where there is clear evidence that the mother poses a strong psychological and emotional threat to the child’s ultimate mental health, and the father has issues of his own and in any event does not seek to have the child live with him, the absence of that power causes considerable frustration.
In this case, X is well cared for in the physical and material senses. She is not beaten or assaulted by her mother, she is well fed and well kempt, and she is attending school in the form of distance learning (where it appears that she is progressing well). She is also involved in some extra-curricular activities.
In those circumstances, the Department is understandably reluctant to intervene and has declined to do so.
The court is not aware whether the Department has considered the likelihood of cumulative psychological harm to X in the care of her mother, and for that reason I will make an order that the Independent Children’s Lawyer provide copies of Dr P’s report and Mr T’s latest family report, and a copy of these Reasons for Judgment to the Department.
I certify that the preceding two hundred and eighty eight (288) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 3 July 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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