Corey and Jebbett (No. 2)
[2019] FamCA 358
•29 May 2019
FAMILY COURT OF AUSTRALIA
| COREY & JEBBETT (NO. 2) | [2019] FamCA 358 |
| FAMILY LAW – CHILDREN – Parenting – Risks of harm posed to child – Whether a meaningful relationship of benefit to the child can be established and maintained between the child and his father – Child with special needs – Whether child ought attend mainstream schooling or be home-schooled by his mother – Whether Mother accessing and maintaining suitable therapy for child – Involvement of Department of Child Safety, Youth and Women. |
| Family Law Act 1975 (Cth) ss 4AB, 60B(1), 60CC(2), 60CC(2A) 60 CG, 61DA, 64B, 65L, 68L, 69ZN, 91B Child Protection Act 1999 (Qld) s 9 |
| Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Betros & Betros [2017] FamCAFC 90 Corey & Jebbett (No. 2) [2018] FamCA 1034 Donaghey & Donaghey [2011] 45 Fam LR 183; [2011] FamCA 13 M v M (1988) 166 CLR 69; [1988] HCA 68 Mazorski v Albright (2007) 37 FamLR 518; [2007] FamCA 520 McCall v Clark (2009) FLC 93-405; [2009] FamCAFC 92 Mulvaney v Lane (2009) FLC 93-404; [2009] FamCAFC 76 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 |
| APPLICANT: | Mr Corey |
| RESPONDENT: | Ms Jebbett |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Kingston, Norman & Kingston Solicitors |
| FILE NUMBER: | BRC | 9223 | of | 2017 |
| DATE DELIVERED: | 29 May 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 3, 4, 5 and 6 December 2018, 11, 12, 13, 14 March 2019 and 5 April 2019, and written submissions filed 22 March 2019 (ICL), 27 March 2019 (Applicant), 11 April 2019 (Respondent) and 18 April 2019 (Applicant) |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Dart |
| SOLICITOR FOR THE APPLICANT: | Landmark Lawyers |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Pendergast |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Kingston, Norman & Kingston Solicitors |
Orders
All previous parenting Orders and Parenting Plans be discharged.
Parental Responsibility
The Mother have sole parental responsibility for major long-term decisions for the child D, born … 2012 (“the child”), and in the exercise of that sole responsibility:
2.1The Mother shall give the Father, in writing, details of the decision that needs to be made, what decision she proposes to make and the reasons why she proposes the decision be made in a particular way;
2.2The Father will respond in writing to the Mother, if he wishes to suggest any variation or alternative proposal within seven (7) days of receiving notice pursuant to Order 2.1 hereof;
2.3The Mother will consider any response given by the Father by reference to the best interests of the child; and
2.4The Mother shall inform the Father, in writing, of her decision as soon as practicable thereafter but in any event within seven (7) days of the decision having been made.
Time Arrangements
The child live with the Mother.
The child spend no time with the Father.
Communication
The Father be at liberty to send the child letters, emails, cards and presents on one occasion each month and at Christmas, Easter and for the child’s birthday.
The Mother be at liberty to monitor the Father’s communication with the child and terminate or withhold any communications which she deems inappropriate.
The Mother and Father be restrained from communicating with each other except by text message, email or via a Communication portal, for one of the following reasons:
7.1 Seeking or providing updates regarding the child’s health;
7.2 Any medical or other emergency involving the child;
7.3Any change to the child’s therapeutic service providers, with any such change to only occur in accordance with these Orders;
7.4 Seeking or providing any information regarding the child’s education;
7.5Notifying the other party of any change to their residential address or contact telephone number;
7.6For the purpose of communication in compliance with these Orders or any other Order of the Court.
Should the Father’s treating medical health practitioner/s from time to time be willing to forward and/or filter communication from the Mother to the Father, the Father shall provide the details of such practitioner to the Mother and the Mother shall thereafter direct all communication to the Father’s treating medical health practitioner/s save for in the case of an emergency.
Each party shall keep the other informed in writing of his/her current residential address and contact telephone number and advise of any change thereto within forty-eight (48) hours of any such change.
The Mother shall inform the Father as soon as reasonably practicable of any significant health issue, significant illness or any medical or other emergency involving the child.
The Mother shall keep the Father informed of the child’s doctors, therapists, health care and other treatment providers, and any day care, school, educational facility or extra-curricular activity provider including providing names, addresses and contact telephone numbers.
Authorities
That the Mother and Father hereby authorise the school/s at which the child is enrolled from time to time, to provide the other parent with information that they are lawfully able to provide about the child, including but not limited to copies of the child’s school reports, school photographs and newsletters of functions and this Order shall serve as such authority.
That the Mother and Father hereby authorise the child’s doctors, health care and other treatment providers involved with the child from time to time, including any National Disability Insurance Scheme (“NDIS”) case manager or contact person and Company P, to provide the other parent with information that they are lawfully able to provide about the child, and to liaise and exchange information directly with the Mother and Father at his/her request and this Order shall serve as such authority.
That these Orders act as authority for the child’s health and associated professionals who attend upon the child to liaise and exchange information with the child’s school and other educational providers, and vice versa, so that a proper understanding of the child’s developmental and associated needs may be attained and appropriate strategies can be prepared to promote the child’s psychological and emotional welfare, development and education.
If there is a cost associated with the provision of any information or documents under these Orders from the child’s doctors, health care and other treatment providers or day care, school, educational facility or extra-curricular activity provider the expense shall be borne by the parent requesting the information.
Therapies for the Child
The parties shall do all acts and things and sign all documents necessary to ensure that the child undergoes a developmental and diagnostic assessment by an integrated multidisciplinary team including, if possible, a paediatrician, clinical psychologist, speech and language pathologist, occupational therapist and an educational psychologist to determine the child’s ongoing needs and specifically his needs for formal schooling and, in particular, the Mother shall facilitate the child’s attendance at all appointments scheduled by the M Hospital for such assessment.
The Mother shall do all acts and things and sign all documents necessary to ensure that any recommendations made as part of the developmental and diagnostic assessment are followed including, but not limited to, engaging and facilitating the child’s ongoing attendance upon other services or therapists.
The parties shall do all acts and things and sign all documents necessary to facilitate the child’s ongoing attendance upon P Group, as directed by them, for as long as therapeutically indicated, for the child’s occupational therapy, speech therapy, physiotherapy and psychological support.
The Mother will comply with all reasonable directions of the employees and agents of P Group, and shall follow all recommendations of the child’s treating professionals at P Group including following advice from the child’s treating practitioners about the priority that ought to be given to the therapies delivered to the child, and including completing any ‘homework’ or engaging in exercises with the child at home.
The parties shall follow all recommendations made by the child’s treating professionals.
Schooling
Should the child be assessed as meeting the eligibility criteria for entry into a special school, the Mother and Father do all acts and things and sign all documents necessary, within seven (7) days of becoming aware of the child’s eligibility, to obtain a medical report or specialist opinion confirming that the child is verified to attend a special school because he:
21.1Has a severe disability as defined by the Disability Discrimination Act 1992 (Cth);
21.2 Has a severe disability which includes an intellectual disability;
21.3 Is unlikely to attain the levels of development of which the person is capable unless the person receives special education;
21.4The child’s educational program is best delivered in a special school taking into account the appropriateness of his placement.
In the event that the parties can obtain verification that the child is able to attend a special school, the parties will do all acts and things and sign all documents necessary, within seven (7) days of obtaining verification, to enrol the child in the O School or the Q School, or a special school in the catchment area in which the child lives.
In the event that the child does not meet the eligibility criteria required to attend a special school, the parties do all such things to enrol the child in the V School on a full-time basis.
Should the V School be unable to accommodate the child on a full-time basis or five (5) days per week, the Mother be at liberty to home-school the child on the days which the V School is unable to take the child.
Should the child be placed on a waiting list for enrolment into the V School pursuant to Order 23 hereof, then within seven (7) days of such placement the parents shall forthwith do all acts and things necessary and sign all necessary documents to enrol the child in W School, or such other State School in the catchment of the Mother’s place of residence from time to time.
Within seven (7) days of enrolment at W School, or such other State School in the catchment of the Mother’s place of residence from time to time, the parents will do all acts and things necessary, and sign all necessary documents to assist the child in obtaining support at school and in particular to request the School obtain for the child an Education Adjustment Program, and to that end shall:
26.1Request an Education Adjustment Program for the child at the enrolment interview and shall bring with them to that interview any reports they have regarding the child’s possible Autism Spectrum Disorder diagnosis and his speech and language delay;
26.2 Complete and sign an Education Adjustment Program (EAP) Consent Form for the School;
26.3Complete or have completed and submit/ted an Autism Spectrum Verification form;
26.4 Complete or have completed and submit/ted a Speech Language Verification form;
26.5 Take the child to any required assessments to assist in verification;
26.6Arrange any reports necessary to support an application for an Education Adjustment Program; and
26.7Complete any other request the School may have to enable them to apply for and obtain verification for an Education Adjustment Program.
Should the child be ineligible to attend at either a special school or the V School, the Mother shall do all acts and things required to maintain the child’s enrolment and attendance at W School, or such other State School in the catchment of the Mother’s place of residence from time to time.
Once the child is enrolled in school pursuant to these Orders, the parties do all acts and things necessary to ensure the child attends school each school day, except when he is unwell, with such absence to be evidenced by a medical certificate.
The Father be at liberty to attend upon a parent/teacher interview at the child’s school provided that he organise such attendance to be separate from any attendance of the Mother.
Therapies and Programs for Parents
The Father shall engage with a consultant psychiatrist as soon as reasonably practicable after the making of these Orders and will continue to attend upon that psychiatrist as directed by them for as long as therapeutically indicated.
Publications
Pursuant to section 121 of the Family Law Act 1975 (Cth) the Father be granted leave and is directed to provide copies of the following documents to his consultant psychiatrist:
31.1 Dr U’s report;
31.2 Ms J’s report;
31.3 Ms H’s report;
31.4 A copy of these Orders; and
31.5 The Reasons for Judgment.
Pursuant to section 121 of the Family Law Act 1975 (Cth) the parties are granted leave and directed to provide a copy of Ms J’s report, these Orders and the Reasons for Judgment to P Group, the M Hospital and the child’s treating health care professionals.
Pursuant to section 121 of the Family Law Act 1975 (Cth) the parties are granted leave and directed to provide a copy of these Orders to the child’s school/s.
The Independent Children’s Lawyer is directed to provide to the Chief Executive of the Department of Child Safety, Youth and Women a copy of these Orders and the Reasons for Judgment.
That:
35.1Each party shall do all acts and things reasonably required by the other including signing or execution of all necessary documents to give effect to these Orders within seven (7) days of being requested in writing to do so;
35.2If either party refuses or neglects to sign or execute and return a document within seven (7) days of a written request to do so then the Registrar of the Brisbane Registry of the Family Court of Australia is hereby appointed under section 106A of the Family Law Act 1975 (Cth) to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit on behalf of the requesting party as to the said refusal or neglect;
35.3The requesting party be at liberty to apply for costs when submitting such an affidavit to the Registrar.
IT IS FURTHER ORDERED THAT:
All applications be otherwise dismissed and removed from the pending cases list.
Pursuant to section 62B and section 65DA(2), of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.
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 Corey & Jebbett (No.2) 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 BRISBANE |
FILE NUMBER: BRC 9223 of 2017
| Mr Corey |
Applicant
And
| Ms Jebbett |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
D born in 2012 and currently six years of age, is the child the subject of the competing proposed parenting orders[1] of, respectively, his father Mr Corey, his mother Ms Jebbett, and the lawyer appointed[2] on 6 December 2017 to independently represent D’s interests in the proceedings (“the ICL”).
[1] Within the meaning of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
[2] Pursuant to s 68L of the Act.
The mother was born in Country F in 1972 and is 46 years of age. Whilst English is not her first language, after migrating to Australia the mother studied here and obtained tertiary qualifications.
The parents commenced cohabitation in Melbourne in November 2010 and married in 2011. As noted, D was born in 2012. In August 2015 the family relocated from Melbourne to Brisbane. The parents separated on a final basis in August 2016.
Following separation the mother has not re-partnered. As at trial the mother and child resided in rental accommodation. The mother is not in employment and cares for D on a full-time basis receiving a carer’s pension.
There is no issue that the mother has been the child’s primary carer throughout his life. There are issues between the parties as to the extent of time and the nature of time the child spent with his father in the post-separation period and whether the mother supported such time occurring from time to time. In the result it will be seen that it is unnecessary for me to resolve those disputed issues of fact.
The father re-partnered in 2017 and as at trial was residing with his partner, Ms X, in a home in which her mother, Ms T, is a part-owner. However, by the end of the trial it appeared that the father would have to find alternate accommodation and there was a question mark over the relationship between the father and Ms X continuing.
Since about October 2016 the father has been employed, working about 50 hours per week.[3]
[3] Father’s affidavit filed on 11 September 2018 at paragraphs 23 and 24.
The father, born in 1974 and thus 44 years of age, has suffered from clinical depression since that was diagnosed in about the late 1980s, when the father was in his late teens. As at the trial the father was taking an antidepressant at a daily dose of 100mg. The father also suffers from chronic sleep apnoea.
The father was also diagnosed with Autism Spectrum Disorder (“ASD”) in 1998.[4] In summary, his social skills, capacity to interact with others and his ability to maintain self-control when under stress, are significantly compromised.
[4] Father’s affidavit filed on 11 September 2018 at paragraph 5.
Each of the father’s parenting capacity and whether, and to what extent, the father poses a risk of physical and/or psychological and/or emotional harm to D loom as central questions arising on the evidence.
Integral to those questions is the fact that D himself has very high needs. In 2014 D was diagnosed with Pervasive Development Disorder and in 2015 was diagnosed with Autism. D has significant speech and language deficits or delays and challenging behavioural difficulties. It is postulated by at least one expert[5] that D may also have “Attention Deficit Hyperactivity Disorder”.
[5] Ms J, clinical psychologist.
D has remained in the mother’s primary care since separation and, by the conclusion of the trial, the father acknowledged that he did not present as an option currently to undertake any more than supervised time at a contact centre; and by the conclusion of the trial the father conceded that an order ought be made for the mother to have sole parental responsibility for D.
However, despite those concessions, the father also contends that D is at risk of emotional and psychological harm in his mother’s care, primarily on the contention that the mother lacks the capacity to appropriately address D’s needs in a number of respects. Taken from the written submissions on behalf of the father, the failures alleged against the mother include failure to:
a)Engage D in consistent therapy until ordered to do so by the Court;
b)Engage in paediatric support for D, despite a lack of clarity around his diagnosis;
c)To provide for D’s particular needs for socialisation;
d)To ensure D’s developmental needs are met through preparation for and/or attendance at an early childhood development program;
e)To set appropriate disciplinary boundaries for D;
f)To enrol D in school or to commence a home-schooling program that would meet the Australian curriculum requirements.
Whilst the father proposes orders that will see D continuing to live with the mother and for her to have sole parental responsibility (albeit with an obligation to afford the father an opportunity to provide his views on decisions), the father also contends for a notation that once he has undertaken therapy as recommended by the single expert psychiatrist, Dr U, he be at liberty to bring further parenting proceedings to seek that D live with, or spend time with, the father on an unsupervised basis.
A central issue in dispute is the mother’s conviction that the child should be home-schooled by her, rather than undertaking any form of mainstream or formal schooling. The father and the ICL are opposed to the mother’s proposal in this respect and, as will be discussed, their opposition is supported by a significant body of expert evidence.
Whilst in advance of the trial, and during the trial, some issues were agitated by the father and the ICL as to the funding received for the child’s therapy from the National Disability Insurance Scheme (“NDIS”), and more specifically as to the management or control of that funding by the mother, no orders (as earlier foreshadowed) seeking to divest the mother of that control were ultimately pursued by any party.
In summary, determination of the parenting orders to be made in this child’s best interests with respect to the issues remaining in dispute is driven by the answers to the following central questions:
i)Does the father pose a risk of harm to D?
ii)Is it more likely than not that a meaningful relationship, of benefit to D, can be established and maintained between the father and D notwithstanding their respective deficits?
iii)If such a meaningful relationship is feasible, what orders for time and communication ought be made?
iv)Should orders be made for D to attend mainstream schooling or should the mother be permitted to home-school D?
v)What orders (if any) should be made in relation to D’s ongoing therapy and medical treatment?
vi)Is D at risk of psychological or emotional harm in the mother’s care?
Given the determinative significance of these central questions it is unnecessary to discuss every disputed issue of fact raised by the parties nor to refer to every piece of evidence.
Competing proposals
The orders proposed by the father underwent significant alteration as the trial progressed. For example, the trial commenced on the basis that the father sought an order that the parents have equal shared parental responsibility for D. In the end result the father did not pursue that order and, like the mother, sought an order that the mother have sole parental responsibility albeit with the father having an opportunity to have input into decisions about major long-term issues for D. Further, at the outset of the trial, the father was seeking orders that his time be supervised by his partner’s mother, Ms T. In the event, the father accepted that his time ought be supervised at a contact centre. Another important variation is that the father originally sought a specific order that an updated family report be provided by mid-2019 with a view to a consideration of the father’s time becoming unsupervised. The father did not persist in seeking that order, although he seeks a notation to the orders that would permit him to revisit parenting arrangements once he has successfully undertaken treatment.
The detailed orders sought by the father by the conclusion of the trial are set out in Annexure B to the Outline of Submissions on behalf of the father filed on 27 March 2019. It is to be noted that in comparison to his earlier stated position, the father no longer sought an order for equal shared parental responsibility and nor did he seek that his time with D be supervised by his partner’s mother or outside of the setting of a contact centre.
The orders sought by the mother are as set out in her Case Information Document filed on 23 November 2018.
The mother maintains the orders sought in her Response to Initiating Application with regard to D’s time with the father. She seeks orders that D spend time with the father supervised at a contact centre limited to four occasions each year (the father’s birthday, Father’s Day, Christmas Eve and D’s birthday).
The mother asserted that the father did not attend his intake session at AA Contact Centre despite Order 6 of the orders made 6 December 2018. As a result, the mother suggested that the parties contact the BB Contact Centre (in addition to the E Town Contact Centre provided for by the orders). The parties are now on a waiting list for supervised time to occur at the E Town Contact Centre and are waiting for their intake sessions to take place at the BB Contact Centre. The mother stated that she was advised that the BB Contact Centre had a wait time of approximately six months while the wait time for the E Town Contact Centre was 6-12 months. Those contact centres charge approximately $30 per hour which is substantially less than the private centres or to engage a carer from the mother’s current agency, DD Agency. The mother stated that while DD Agency was designed to provide respite care rather than supervise time, she would be happy for a carer from DD Agency to be present during D’s time with the father.
At the time of her cross-examination, the mother’s only form of income was derived from a carer’s pension in the sum of $920 per fortnight. The father has been meeting his child support liability and the father’s mother also pays $200 per week into the parties’ joint account for the mother’s use. The mother’s rent totals $300 per week. Up until December 2018, the father was purchasing the mother’s groceries each week.
If D spends time with the father at a contact centre on only four occasions per year, as sought by the mother, then the mother indicated that she would pay the cost of the supervision. The mother did not accept the recommendations of the family report writer in relation to the frequency of time. However, if the Court made orders for D to spend supervised time with the father each alternate weekend, the mother proposes to share the cost of the supervision with the father. The mother confirmed in cross-examination that she would be happy for D and the father to spend supervised time together outside of a contact centre provided that it occurred nearby a train or bus line that the mother could get to, given that she does not drive.
The mother also proposed to create an email account for D so that the father could send him emails. The mother confirmed that she would need to assist D with email communication for a while yet given his young age.
The ICL postulates alternative orders in the Minute of Orders filed on 22 March 2019 depending upon the Court’s determination of the question of whether or not there is benefit to D of a meaningful relationship with his father.
Obviously the comparison between the detail of these respective proposals identifies all of the differences between the parties in terms of the orders sought. However, the following is a summary of those areas of both commonality and difference:
Orders Sought:
| Order | ICL (per Minute of Orders filed on 22 March 2019) | Father (per Minute of Orders filed on 27 March 2019) | Mother (per Case Information document filed on 23 November 2018) |
| Parental Responsibility AGREED | Mother have sole parental responsibility. | Mother have sole parental responsibility. | Mother have sole parental responsibility. |
| Live with AGREED | D live with mother. | D live with mother. | D live with mother. |
| Time with father NOT AGREED | If the Court finds there is no benefit to D having a relationship with the father, D spend no time with father. 1. obtaining stable accommodation; 2. abstaining from consuming alcohol; 3. engaging with a psychiatrist; 4. following the advice and recommendations of the psychiatrist; 5. providing all relevant Court reports and documents to the psychiatrist; and 6. the psychiatrist holding no concerns about the father spending time with D in a contact centre. | D spend time with father for two hours each alternate weekend supervised by a contact centre at the father’s sole expense. | D spend time with father for three hours on four occasions each year supervised at a contact centre at the father’s sole expense. |
| Communication NOT AGREED | Father be at liberty to send letters, cards and presents for D’s birthday and for Christmas. Parents communicate via the “Our Children” website. | Father be at liberty to Skype, FaceTime or call D. Father be at liberty to send letters, cards and presents to D once per month and on his birthday, Christmas and Easter. Mother and father be restrained from communicating with each other except via text message, email or a Communication Portal for limited reasons. | Father be at liberty to Skype or FaceTime D from 7.00-7.30 pm on one Sunday each month. Father be at liberty to send D emails, ecards and e-gift cards. Mother to be able to monitor the father’s communication with D. |
| D’s Schooling NOT AGREED | Mother enrol D in an Education QLD facility with a special education unit as agreed or failing agreement, within the mother’s catchment area. | Parents enrol D in W School within 7 days and do all things necessary to assist D in obtaining support at school and request an Education Adjustment Program. | Mother continue to home-school D pursuant to the curriculum approved and registered by the Education Department. |
| D’s Therapy NOT AGREED | Mother ensure that D attend P Group for speech therapy, OT and physiotherapy and comply with advice from practitioners. The mother attend all appointments scheduled at the M Hospital for D to undergo a developmental and diagnostic assessment by an integrated multi-disciplinary team and implement any therapeutic recommendations. | Both parties ensure D undergoes a developmental and diagnostic assessment by an integrated multi-disciplinary team and implement any recommendations. Parents continue to ensure that D attend P Group for speech therapy, OT, physiotherapy and psychological support. Mother comply with all reasonable directions and follow all recommendations from D’s treating professionals. | Mother determine what therapy provider to use (whether P Group or another) for D’s ongoing therapy. Mother continue to self-manage the NDIS funding. |
| Restraints NOT AGREED | N/A | Mother be restrained from: 1.supervising or participating in D’s time with the father; 2.organising any supervisor or support person to be present during D’s time with the father; 3.utilising the NDIS funding to engage a supervisor. Mother and father be restrained from: 4.communicating with each other except via text message, email or a Communication Portal for limited reasons. | Father be restrained from: 1. consuming alcohol within 24 hours before visits; 2. allowing D to come into contact with Ms T or Ms X; 3. allowing D to come into contact with anyone with “drug or alcohol issues”; 4. allowing anyone to consume alcohol or take drugs in D’s presence; 5. allowing any smoker from coming into contact with D; 6. driving a vehicle with D present; and 7. physically engaging or swearing at D. |
The trial
Original estimates that the trial of these proceedings could be completed in three or four days proved to be ambitious and illusory.
The trial proceeded over four days in December 2018. It was then necessary to adjourn the trial pending the outcome of a then foreshadowed investigation and assessment by the Department of Child Safety, Youth and Women (“the Department”). The trial resumed for a further four days in March 2019; one day in April 2019 with further written submissions being filed by each party, the last by the father on 18 April 2019.
In relation to the involvement of the Department in these proceedings, I record that on 24 September 2018 I made orders to facilitate the trial of these proceedings to commence on 3 December 2018. As part of those orders I made orders at the request and submission of the ICL that, inter alia, pursuant to s 91B of the Act the Court request the intervention of the relevant departmental officer as a party in the proceedings.
The reasons for that request are contained in reasons for judgment delivered in this matter on 3 December 2018 in respect of an application by the mother for removal of the ICL.[6] I incorporate here those reasons for judgment without reciting them.
[6]Corey & Jebbett (No. 2) [2018] FamCA 1034.
Exhibit 3 in the proceedings is a letter from the Department dated 30 November 2018. That letter records a summary of the historical involvement of the Department with this family to that point. At that time it seemed clear from this correspondence that the Department was neither intending to intervene as a party in the proceedings, nor to undertake any investigation, and there was therefore no apparent impediment to the trial proceeding.
However, what followed is Exhibit 18 in the proceedings being a letter from the Department dated 5 December 2018, the third day of the trial. That constituted advice from the Department of the intention to undertake an investigation and assessment in this matter, contrary to the indications contained in the earlier correspondence referred to.
In the light of the advice from the Department the trial could not reasonably be completed until the Department had completed its investigation and assessment.
Exhibit 24 in the proceedings is further correspondence from the Department. Correspondence dated 1 March 2019 records the outcome of the Department’s investigation and assessment in the following terms:
…
The outcome of the investigation and assessment will be recorded as substantiated – risk of harm to [D]. That said, the investigation and assessment did not identify a basis to remove [D] from the physical custody of his parents, in this case his mother as his primary carer, or a basis at this time to make a referral to the Office of the Director of Child Protection Litigation to commence proceedings in the Childrens Court. The risk found by the investigating departmental officer arises from identification that [D] is not receiving co-ordinated, consistent access to therapeutic support commensurate with his special needs.
As discussed, whilst a substantiated outcome will be recorded and further departmental intervention is proposed, in the first instance the department will seek to intervene to meet [D’s] need for care and protection by way of parental agreement i.e. the department proposes to open an Intervention with Parental Agreement (IPA) case…
As [D] lives with the mother, the focus of case planning will be on [D’s] care in that household, with a particular focus on supporting the mother to better meet [D’s] therapeutic needs. I am advised by the relevant Senior Team Leader, Mr Y of the CC Centre, that the mother was verbally advised of the outcome of the department’s investigation and assessment and a preliminary discussion has occurred with the mother about engaging with the department via agreement and she has agreed to do so.
…
Further, I am advised by Mr Y that if the parents, primarily the mother, changes her position and will not engage in Case Planning for D by way of agreement, the assigned Child Safety Officer and Mr Y will consult with the assigned legal officer at the department’s Office of Child and Family Official Solicitor with a view to making a referral to the Office of the Director of Child Protection Litigation that the Director consider an application to the Childrens Court for an order requiring the chief executive to supervise D’s protection in respect of stated matters…
Aside from the complications for completing the trial brought about by the Department’s decision to carry out an investigation and assessment after the trial had first commenced, a significant impact upon the trial was the mother’s
self-representation. Whilst the father was in receipt of Legal Aid and was represented by a solicitor and counsel at the trial, the mother was in the position of having to represent herself. As earlier noted, English is not her first language and the mother has no relevant legal training or experience. The ICL was also represented by counsel. Whilst these are child related proceedings to which Division 12A of Part VII of the Act applies, and the Court sought to give effect to the principles in s 69ZN of the Act, it proved to be necessary to afford the mother significant latitude, particularly as regards questioning of witnesses whom the mother perceived as providing evidence adverse to her case, even when aspects sought to be addressed by the mother were irrelevant to the central issues. For example, the mother was allowed the equivalent of an entire day to cross-examine the single expert clinical psychologist, Ms J and not all of that was directed to relevant issues. The mother expressed that she wished to cross-examine Ms J at even greater length, but a balance had to be struck between the mother’s right to be heard and present her case, with the proceedings becoming unreasonably protracted for no good reason.
Moreover, conscious of the mother’s self-representation I required that she have the opportunity, after the close of evidence, to receive and consider final submissions in writing from each of the other parties to afford her the reasonable opportunity to consider and respond to the competing submissions prepared by lawyers. This the mother did in oral submissions made on 5 April 2019 and by further written submissions filed on 11 April 2019.
At trial, the mother presented a series of five bound books which were marked “A” to “E” for identification. As the transcript of the trial will reflect, it was explained to the mother that these books contained some inadmissible and/or irrelevant material. It was also explained to the mother that whilst the books were marked for identification, in order for any content to be received into evidence, the mother would need to tender specific documents for them to form part of the evidence to be considered. The exhibits include portions from or items in one or other of those books identified by a particular colour ie “blue book”, “green book”, “no colour book”, “red book” and “yellow book” respectively. Some reference will be made in the course of these reasons to particular documents admitted as exhibits, sourced to one or other of the mother’s books.
The expanded length of the trial was also contributed to by some expansion in the number of witnesses ultimately required to give oral evidence. In the end result, the following witnesses gave oral evidence and were cross-examined:
i)The father;
ii)The mother;
iii)Ms H – family report writer;
iv)Ms Z – maternal grandmother;
v)Mr EE – family consultant who supervised several changeovers at Court;
vi)Ms J – single expert clinical psychologist;
vii)Ms T – mother of father’s partner, Ms X;
viii)Ms X – father’s partner;
ix)Ms S – Director of P Group;
x)Ms FF – Occupational Therapist formerly employed at P Group;
xi)Ms GG – Child Safety Officer, CC Centre;
xii)Ms HH – Senior Team Leader, Court Services – Department of Child Safety, Youth and Women.
Applicable legal principles
Part VII of the Act provides the statutory framework in which the Court’s jurisdiction, power and discretion to make parenting orders (as defined in s 64B) is exercised.
The objects of Part VII are expressed in s 60B(1). Of particular relevance to the issues in this case as to the benefit to D of a meaningful relationship with his father, and protecting a child from risk, are objects (a) and (b) which provide:
(1)The objects of this Part 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
…
Those respective objects find reflection in the two primary considerations set out in s 60CC of the Act which sets out the primary considerations and the additional considerations by which a Court determines what is in a child’s best interests. Relevantly, s 60CC(2) provides:
Primary considerations
(2) The primary considerations 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.
Section 60CC(2A) requires the Court to give greater weight to (b).
By reference to the central questions earlier identified, it can be seen that in this case each of the two primary considerations in s 60CC(2) assume determinative significance upon the child’s best interests concerning any orders for time spent with his father.
In deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration.[7]
[7] The Act, s 60CA.
In this context it is to be noted that s 60CC mandates that in determining what is in the child’s best interests the Court must consider each of the matters set out in subsection (2) (the primary considerations) and subsection (3) (the additional considerations). It will be understood that discussion about, and findings in relation to, the central questions in this case earlier identified will obviously resonate with one or more of those considerations. Conversely, those being the central questions having determinative significance about what is in this child’s best interests, specific discussion in these reasons about each and every of the considerations is unnecessary. In summary, whilst I emphasise that I have considered each and every of the s 60CC considerations, I do not intend to include within these reasons any detailed discussion, in a formulaic way, of any of those considerations not at the forefront of this determination.[8]
[8]Banks & Banks (2015) FLC 93-637.
Section 60CG is a statutory requirement to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In this case neither of the parents, nor the ICL, identify that an order for equal shared parental responsibility would be in the best interests of D. Each party ultimately seeks an order for the mother to have sole parental responsibility as meeting D’s best interests. As will be discussed, there are reasonable grounds to believe in this case that a parent of D, the father, has engaged in family violence. It follows that the presumption in s 61DA of equal shared parental responsibility when making parenting orders does not apply in this case by operation of subsection (2). Such presumption would, in any event, be rebutted by the best interests considerations as is referred to in subsection (4) of that section, as will be clear from these reasons.
In a case where, as here, orders for indefinite supervision of D’s time with the father are to be contemplated the undesirable, though sometimes warranted, imposition which supervision entails needs to be given careful consideration.
In Betros & Betros[9] the Full Court observed at [13]:
13.It has long been recognised that the permanent imposition of supervision upon the interaction between children and a parent is undesirable, though sometimes warranted (see Slater & Light (2013) 48 Fam LR 573 at 583–584; Champness & Hanson (2009) FLC 93-407 at [209]–[215]; Moose & Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]–[41]; B and B (1993) FLC 92-357 at [79,780]). Consideration should usually be given to whether orders can be created to avoid the permanence of the supervision or, if that is not practicable in the circumstances of the case, whether the orders for permanent supervision are instead best made unconditionally, leaving the supervised party to decide if and when he or she might bring fresh proceedings to vary the orders upon proof of changed circumstances, in the manner envisaged by Rice and Asplund (1979) FLC 90-725, as s 65D(2) of the Act ordinarily allows (see Gorman & Huffman and Anor [2016] FamCAFC 174).
[9] [2017] FamCAFC 90.
As already noted, the father mounts a case to the effect that D is at risk of emotional and psychological harm in his mother’s care. That is analogous to a case where positive findings are urged upon the Court as to, for example, physical abuse and particular care needs to be taken in relation to such findings.[10]
[10] See, for example, M v M (1988) 166 CLR 69 and the authorities summarised in Donaghey & Donaghey [2011] 45 Fam LR 183 at [26]-[32] per Murphy J.
the child’s diagnosis
It would appear more likely than not that D has ASD. The reason the finding cannot be expressed in definitive terms is that as at the trial there was no up to date and comprehensive medical assessment of the child by a specialist paediatrician or like medical specialist and other experts, such as the single expert psychologist, Ms J, questioned the diagnosis of Autism absent any current and comprehensive diagnostic assessment.
That noted, it would appear that D’s treating general practitioner, Dr JJ, has no doubt about that diagnosis. For example, Exhibit 6 is correspondence from Dr JJ dated 23 September 2018 regarding D’s funding via the NDIS. Indeed NDIS appears to be proceeding on the basis that D is properly diagnosed with ASD.
It would appear that the parents and, for example, P Group are all proceeding on the basis that D has a valid diagnosis of ASD.
The following extracts from various reports exhibited in these proceedings are relevant to the question of D’s diagnosis:
a)Report prepared by Professor SS dated 15 March 2016:[11]
[11] Exhibit 5 at p.3.
I saw D with his mother … and father … at the KK Centre on 15 March 2016. D has a diagnosis of an Autism Spectrum Disorder and the major focus during the appointment was in terms of D’s ability to manage his intense emotions when he has to end an activity he is enjoying or at a time of transition…
(Emphasis added)
b)Letter from Mr LL (occupational therapist at MM Services) dated 1 October 2016:[12]
…
I have met with [D] and his parents … on three occasions in total dated 27/01/2016, 09/02/2016 and 02/03/2016, both parents were in attendance for these appointments. [D] … was referred by his parents under the Helping Children with Autism Funding. This was due to concerns about his development (in line with his diagnosis of Autism Spectrum Disorder), as well as aggression and further developmental delays.
D is diagnosed with Autism Spectrum Disorder (diagnosed by Consultant Paediatrician Dr NN)…
(Emphasis added)
c)Letter from Dr OO (paediatric staff specialist at E Town Hospital) dated 12 August 2016:[13]
…I was not convinced that [D] fulfilled the ASD criteria as his eye contact, cuddliness and pointing and emotional reciprocity was a bit too normal to warrant that diagnosis so I have not made a diagnosis.
Although I understand that [D] has been seeing an occupational therapist through V School, I am not convinced. Although the letter from Dr PP says that he had a consolidated diagnosis of autism disorder first established in Melbourne two years ago when the provisional diagnosis was PDD-NOS, I am not convinced at this stage of a diagnosis…
d)Occupational Therapy Summary Report from Ms QQ (occupational therapist at E Town Centre) dated 10 March 2017:[14]
D is a four year old boy with a diagnosis of Autism Spectrum Disorder…
[12] Exhibit 1 at pp.54-55.
[13] Exhibit 37.
[14] Exhibit 35.
As a result of the lack of a current and comprehensive diagnostic report, and the opinions expressed by Dr OO above, some doubts were cast by the single expert, Ms J, as to whether D had in fact been diagnosed with Autism.[15]
[15] Ms J’s report filed on 27 November 2018 at paragraphs 8.13-8.27.
On 6 December 2018, this Court made orders for the mother to do all things necessary to obtain a referral to the M Hospital for D to undergo a developmental and diagnostic assessment by a multi-disciplinary team including, if possible, a paediatrician, clinical psychologist, speech and language pathologist, occupational therapist and educational psychologist (consistent with the recommendation contained at paragraph 19.1 on page 25 of Ms J’s report).
The Court was advised by the parties that D was on a waiting list to be seen by a paediatrician at the hospital and the hospital had indicated that D’s appointment would occur in approximately May 2019. Whether D would be assessed by any other professional was unclear.
In my judgment it is not strictly necessary to have the results of this appointment/assessment for the Court to be in a position to determine the remaining issues. Whatever label is attached to D as a diagnosis he clearly has significant delays particularly in speech and language development and has particular behavioural difficulties. Thus, whether he is Autistic or suffers Pervasive Developmental Delay or attracts some other diagnosis is not critical, in the scheme of things, to the issues to be determined, to allow them to be determined and for parenting orders to be made.
Where the assessment or expert opinion as to D’s current diagnosis will have practical effect is on D’s eligibility to attend at a special school or not and, of course, the therapies D requires.
I interpolate here that no relevant views have been expressed by the child and, in any event, he has neither the maturity or level of understanding necessary, for any weight to be given to his views (s 60CC(3)(a)).
Father’s parenting capacity – evidence of the risks the father presents
The mother’s evidence
The mother stated that in March 2017, the parties attended Family Dispute Resolution following which she asserts that the mediator told her not to allow D to spend time with the father and that the mediator would be reporting the matter to the Department. Following the report, the Department investigated however no risk was substantiated and no further action was taken. The mother ceased time following the mediation in March 2017.
Orders were made in the Federal Circuit Court on 7 December 2017 for D to spend six hours with the father each Saturday, to be supervised by his partner’s mother, Ms T. That time was to commence on 9 December 2017. The mother did not make D available for time to occur on that date as she asserted that he was sick. The mother continued to fail to facilitate the time as ordered and sought a stay of the orders pending an appeal. The mother’s stay application was dismissed on 6 February 2018 and orders were made reducing the supervised time to three hours each Saturday. The mother then filed an appeal in respect of those orders. D did not spend time with the father until 27 April 2018, after a hiatus of approximately 13 months.
During cross-examination the mother confirmed that she had engaged her own supervisors to be present during D’s time with the father despite Ms T being the supervisor provided for in the orders. The mother stated that she opposed Ms T being the supervisor from the outset as she did not think that she was suitable, primarily because the mother found her to be biased in favour of the father and dishonest. The mother was also concerned that Ms T would be unable or unwilling to act protectively for D if the father became enraged. The mother raised unsubstantiated assertions of Ms T suffering from undiagnosed autism and/or depression. The mother stated that if D’s time with the father were to occur at a contact centre or in the presence of a professional supervisor, then she would not feel the need to be present (or engage her own supervisor).
In the result as at trial the father had been seeing D every Saturday since September 2018 by visiting the mother’s residence and the mother undertaking that supervision rather than it being undertaken by Ms T. The only exceptions to this are two occasions when time was missed on 10 November 2018 and 1 December 2018.
Notably, the father described arriving to commence spending time at about midday and the time lasting until about 5.00 pm. That compares to the orders providing for the time to be supervised and between the hours of 10.00 am and 1.00 pm. That is, for all the criticisms of the mother, she was actually allowing the father to spend more time with D on a weekly basis, for a total of five hours as opposed to the three hours as ordered.
The father described the time as involving him perhaps attending to some handyman type jobs although I accept the maternal grandmother’s evidence concerning this that these are jobs related to D, for example the assembly of his bed and working on his bicycle. On the father’s description D watches and sometimes assists the father in the handyman work undertaken. After any jobs are undertaken the balance of the time is spent at a local park and the mother accompanies the father and D to the park.
The mother stated that she often allows D to do what he wants but tries to set boundaries. The mother stated that D’s behaviour significantly improved during the 13 month period that he was not spending time with the father and deteriorated again once the father was re-introduced.
The mother acknowledges, in her affidavit material,[16] that during their relationship the father never assaulted or abused her physically. However, her evidence, which I accept, is that the father would lose control and make threats to kill her and there were episodes of him losing control and punching the wall or destroying or damaging property. She also provides evidence, which I accept, of the father’s inappropriate actions and interactions towards, or in the presence of, D.
[16] See, for example, the mother’s affidavit filed on 6 December 2017 at p.8.
In his affidavit evidence the father acknowledges that there were times during the relationship that he would “scream and swear, and damage property”[17] although he attributes fault to the mother for causing him to behave in such a manner.
[17] See, for example, the father’s affidavit filed on 11 September 2018 at paragraph 71.
Exhibits 10 and 13 in the proceedings relate to an incident on 18 December 2015 where the father smashed a laptop computer and the police were called. I accept the mother’s evidence that on that occasion the father threatened to kill her. On 19 December 2015 the police brought an Application for a Protection Order on behalf of the mother after the incident on 18 December 2015. On 4 January 2016 a Protection Order was made on a without admission basis requiring the father to be of good behaviour to the mother.
In comparison to the mother’s specific evidence, for example as to the laptop computer incident, the father’s evidence is vague and imprecise. For example, in relation to the laptop computer incident, the father acknowledges remembering that incident but cannot recall what words he said to the mother at the time.[18]
[18] Father’s affidavit filed on 11 September 2018 at paragraphs 75 and 76.
Notably at paragraphs 78 and 79 of his affidavit filed on 11 September 2018 the father deposes:
78.There were other occasions when I reacted badly although I do not remember some of the incidents [the mother] has referred to in her material. I do remember punching the wall on two occasions. I remember at the time that [the mother] was upset at me and I lost my temper.
79.Usually when I lash out it is because [the mother] is mad at me and I cannot cope.
I prefer the mother’s evidence to that of the father where they diverge on their accounts concerning family violence within the meaning of s 4AB of the Act. I am satisfied, on the mother’s evidence, that the father’s behaviours in terms of his swearing at her and intentionally damaging or destroying property constitute family violence within the meaning of that section, which caused the mother to be fearful at the times when that occurred.
Exhibit 10 in the proceedings are pages 7 and 8 extracted from the mother’s green book comprising the police notes from the incident on 18 December 2015 where the father smashed the computer laptop and is recorded as saying to the mother “[y]ou cunt. I want to kill you.”
Exhibit 12 in the proceedings, again pages extracted from the mother’s green book, are police notes dated 1 August 2016 recording the father saying he wanted to “push [the mother] under a bus” and that she is “not dead yet.”
I accept that these exhibits accurately record the facts recorded in them.
The father’s oral evidence
The father was cross-examined primarily at the first stage of the trial in December 2018. Whilst he gave further evidence and was cross-examined at the second stage of the trial in March 2019, the latter bracket of evidence was mainly confined to the then recent attempts the father had made to seek some treatment from medical professionals. The following mainly refers to the evidence the father gave under cross-examination on 4 and 5 December 2018.
The father was taken to the undated letter that he wrote to the mother’s brother. The letter post-dates the parties’ separation but it was seemingly a letter completed at the end of 2017, but perhaps commenced months beforehand. That letter contains the following description by the father of the mother:[19]
[The mother] is a toxic person. You have known her longer than me so I wonder what you would say about [the mother’s] personality. I say she is irrational, hysterical, conceited, solipsistic (this means she thinks the universe revolves around her), a control freak, selfish, incurious, negative, deliberately feeble, self-defeating.
In his oral evidence under cross-examination the father confirmed that he remained of the view that this description accurately describes the mother currently.
[19] Exhibit 9.
The letter also contains this:
…If I didn’t leave that day, that minute I was going to bash [the mother]. I had been fantasizing about violence for years. Against my mother, against shop assistants, doctors, etc. I was trying so hard to be a good husband. I sort of a relief, that I was regaining sanity, when I started fantasizing about violence against [the mother]. Stopping myself from assaulting [the mother] is the hardest thing I have even done.
(As per the original) (Emphasis added)
As regards the mother, the father confirmed in his oral evidence that he was continuing to experience fantasies about violence towards the mother on a weekly basis. He qualified his evidence to the extent of saying to the effect:
I don’t think about killing her so much, it is more about inflicting pain.
This was occurring on a weekly basis on the father’s account and referable to when he undertook shopping for the mother at her request. As earlier noted, since September 2018 the father had been seeing D every Saturday by visiting the mother’s residence and the mother undertaking that supervision. Those periods were lasting from about midday until about 5.00 pm as compared to the prevailing orders at that time providing for only three hours.
It seemed the father took issue with the number and types of items of shopping the mother requested of him each week, and this apparently triggered in him the response of having thoughts of violence towards the mother when undertaking the shopping and indeed, extraordinary as it would seem, thoughts of violence towards shop assistants.
Taken back to his letter at the time he wrote it, the violence towards his own mother was explained by the father in a curious way. He seemed to be having thoughts of violence towards his own mother and indeed doctors because of confrontations between the mother in this case, and his own mother or doctors respectively. For example, he gave evidence to the effect that it would be good if doctors simply did what the mother asked but inferring that he had thoughts of violence towards them when there was conflict between the mother and doctors over D’s treatment. Similarly, he had thoughts of violence towards his own mother by reason of matters of seemingly trivial complaint as between the mother and his own mother.
The startling evidence the father gave about his letter to the mother’s brother, and his startling evidence concerning his fantasising about violence mainly directed to the mother, but not confined to her, and the matter of fact manner in which the father delivered this evidence, was deeply troubling and confronting to observe, and resonates as regards the assessment of risk posed by the father. Concerns in this respect are added to when the opinions of Dr U, single expert psychiatrist, are factored in when Dr U gave oral evidence with this additional information added from the father’s own evidence, as will be discussed.
Further evidence relevant to this will be discussed but I interpolate here that I have no hesitation in finding that presently, and for the foreseeable future, the father poses a significant risk to the physical safety of each of the mother and D. As Dr U observed, the father requires concerted expert medical treatment from a psychiatrist. Even then, on Dr U’s evidence, there is no guarantee of the treatment being successful. I interpolate here that I prefer Dr U’s assessment of the seriousness of this evidence given by the father to that of Ms J. Ms J did not seem to alter her recommendations in any way in light of what I regard as profoundly troubling evidence. I regard Dr U as better qualified than Ms J to assess this evidence and its impact.
Asked about any treatment regime in circumstances where he was having these weekly episodes, the father confirmed that the only medication he takes is antidepressant medication. He sees a local general practitioner three or four times a year but only in respect of medication and without informing any doctors of his weekly fantasising about violence and potential homicide. Beyond that, the father was attending on a monthly basis, on his description, with Mr B, a counsellor at C Group Queensland. The father understands Mr B to be a counsellor but knew nothing more about his qualifications. He said that Mr B had spent many years counselling men concerning domestic violence.
With respect to Mr B, Exhibit 2 in the proceedings are notes authored by Mr B dated 13 December 2016 in relation to events occurring the day before (12 December 2016). Relevantly that record is as follows:
Summary:
[The father] made an implicit threat to the safety of his wife, [the mother]
Details:
[The father] said words to the effect that [the mother] being dead, his being in jail and D (son) being in care was not bad
What actions were taken immediately following incident to make situation safe?:
[The father] became less and less responsive to questions and comments by myself during the session. After a considerable amount of time, I notified [the father] that I had concerns for the safety of [the mother], D and himself. I informed [the father] that I had a duty of care to him and that I had decided to ensure his mental health care at this time by contacting my Team Leader and arranging for an Ambulance to transport him to a Mental Health Unit. [The father] agreed. I phoned Reception, Ms RR was contacted and came to the counselling room. In Ms RR’s presence, I explained my safety concerns. Ms RR spoke to [the father] and informed that an Ambulance would be called. [The father] agreed. Ms RR rang an Ambulance. When the Ambulance Officers arrived, they spoke to [the father]. He agreed to be transported to a Mental Health Facility. [The father] left in the care of the Ambulance Officers. [The father] explained that he had arranged to contact a Psychologist at MN Group by phone today at 11:30 and would not be able to do so. Ms RR offered to call to Worker and explain that he would be transported to Hospital today. [The father] agreed. Ms RR did so.
(As per the original) (Emphasis added)
The father’s evidence is to the effect that he was admitted to the mental health facility on this referral, did not stay overnight but spent a matter of hours in such a facility. The father does not seem to have had any follow up expert psychiatric treatment and, on his evidence, the only assistance he has availed himself of since has been some continuing counselling with Mr B. The father said that he likes to speak to Mr B and thinks it assists him. Curiously, the father said that he would go more often to Mr B if the Court recommended it. By the conclusion of the trial it seemed that the father’s consultations with Mr B would be coming to an end.[20]
[20] Father’s affidavit filed on 5 March 2019 at paragraph 6.
It is, to say the least, profoundly troubling that the father was having weekly thoughts of potential homicide directed to the mother or at least thoughts of committing violence upon her, without seeking any medical treatment. Asked what kinds of violence he fantasised about he said:
Strike her on the head or whip her.
At the outset of Ms J’s cross-examination by the ICL, Ms J was asked to read Exhibit 2 (being the notes from Mr B during a session where the father said that if the mother was dead, he was in jail and D was in care, that would not be bad) and Exhibits 8 and 9 (being the letter written by the father to the mother’s brother sent on 31 December 2017). Ms J was also given a summary of the evidence the father had given during cross-examination regarding his fantasies about violence, suicidal ideation (occurring about four times per year) and the fact that the father was not under the care of a treating psychiatrist or psychologist.
Despite this further information, Ms J maintained the conclusions drawn in her report dated 27 November 2018. Ms J did emphasise her recommendation, contained at paragraph 57.12, that in considering whether the father should be given an increased independent caregiver role for D, a formal risk assessment ought to be conducted in conjunction with a parenting capacity assessment in order to identify the level of risk and the protective factors required to mitigate any risk. To that recommendation, Ms J added that a violence risk assessment should also be undertaken by a specialist. In my judgment, Dr U’s evidence provides the relevant risk assessment.
Ms J did not recall the father conveying any thoughts of harming the mother to her during his psychological assessment.
There was, on the father’s evidence, an interesting comparison to be made between his evidence and the evidence of the family report writer, Ms H, in her interview and observations process. At paragraph 5.2 of Ms H’s report filed on 12 September 2018 she describes the following observations of the father–child interaction during her report process:
5.2Given D appeared unwilling to do as he was being asked, I had to instruct Mr. Corey to encourage D to come into the play area and lounge room. Mr. Corey appeared to have significant difficulty managing D and when D wouldn’t do as Mr. Corey asked I observed Mr. Corey grab [D] by the upper arm and physically drag him through the foyer area of my office. I had to insist that Mr. Corey not physically drag D into the room and so he then took D by the hand and lead him into the playroom. D took out the ten-pin bowling activity before moving outside to play with the sandpit and totem tennis activities. I noted that D appeared to have an aversion to the sand while playing as he was constantly wiping his hands, however he did appear to enjoy this activity and playing with Mr. Corey.
(As per the original) (Emphasis added)
In her oral evidence, in speaking of the father’s capacity to learn and accept instruction, Ms H referred to the feature that this was an example of the father responding to direction.
In contrast to that, in his oral evidence under cross-examination, the father seemed to take specific issue with the description that he had dragged D. He spoke of “leading” D rather than dragging him and that he did not use excessive force. As it seems to me, the proposition of Ms H’s that the father took instruction or accepted instruction falls away when it is seen that on the father’s own evidence he does not accept the premise that he was using excessive force or dragging D in the first place.
To confuse the situation perhaps a little further, in a later part of his evidence the father said that he could not specifically remember how he had sought to move D on the occasion referred to and therefore could not specifically remember whether he “dragged” or “led” D, but on his version he did not ever use excessive force. I accept Ms H’s evidence that the father did use excessive force and it is troubling that he apparently does not accept that.
The father acknowledged in his evidence in cross-examination that he has a propensity to lose control. The father also acknowledged that whilst on an intellectual or academic level he might understand or gain an understanding of proper or appropriate parental behaviour, he equally acknowledged that in the heat of the moment at a practical level he may not be able to put such learnings into practical effect. I accept the father’s evidence that he has the intelligence to understand appropriate behaviour, but I equally accept his own evidence that he has a propensity not to put that into practice in circumstances where he loses control or is under any kind of pressure.
During one occasion on 15 March 2016, the mother and father took D to Professor SS’s rooms for assistance in relation to managing D’s behaviour. At the end of the session an incident took place which Professor SS reported to the police. In his police statement Professor SS described the incident as follows:[21]
[21] Exhibit 5 at pp.5-6.
…
6. At 9:30am I had an appointment with some new clients of mine, Mr Corey and Ms Jebbett. They attended with their 3 year old child D. The appointment was in relation to managing D’s behaviour as he suffers Autism and Significant Language Impairment.
…
10. At approximately 10:50am D was tidying up the toys he had been playing with during the appointment and was standing within arms-length of his Father who was sitting in a chair. D seemed to be mildly upset about having to pack up the toys and leave.
11. I was standing approximately one and a half meters from D and his father.
12. There was nothing obstructing my view of the pair and I was wearing my glasses.
13. Suddenly, completely unprovoked, the father raised his right hand slightly and struck D in the left temple with such force that I was surprised D did not fall over.
14.Immediately after striking D, the father called D a “Cunt”.
15. D just stood there and he appeared to be frozen with tears streaming down his cheeks. D did not make any sounds or go to his mother for comfort.
16. The father then took D out of the room and downstairs to the reception area.
17. We then continued to tidy up the room and as the mother left left she said to me “It’s your fault [Professor SS], he does the opposite of what you say” before leaving my office.
18. On Tuesday the 15th of March 2016, I attended the Police Station to report this matter and provide this statement.
Of particular emphasis is the fact that D was only three years of age at the time of this assault. Plainly this constitutes an act of family violence within the meaning of ss 4AB and 61DA(2) of the Act.
The father acknowledged in cross-examination that the event occurred but seemingly disputed that he had called D “a cunt” at the time. In the end though, he accepted that if Professor SS recorded that, it must be accurate. He acknowledged that D’s behaviour on that occasion was simply the behaviour of “what little kids do” or words to that effect. However he also acknowledged that it is also what bigger kids on the autism spectrum might also do. He acknowledged his own behaviour to be totally inappropriate. I find that Professor SS’s recorded account of this episode, and the mother’s similar version, are accurate.
I find that the father’s apparent inability to maintain self-control, including when confronted by matters to do with the mother (including by extension, interaction with D) poses potential significant risk of physical harm to D. In short, whatever dynamics existed as would result in the father assaulting his then three year old child in the setting of the examination by Professor SS, do not appear to have been addressed in any meaningful way by the father in the period since. It is therefore impossible to exclude the prospect of that kind of behaviour being repeated in some form. As will be discussed there is further evidence, which I accept, of the father acting inappropriately towards D.
An example of the father operating in one way at an academic or intellectual level, and another way at a practical level, is his denigration of the mother from time to time in D’s presence. It is clear from the father’s evidence under cross-examination that he acknowledges that it is inappropriate to call the mother “a cunt” or to describe her as “retarded” in D’s presence. Yet on his own evidence that is in fact what occurs. That is, the father acknowledges that it is not a positive experience for D to see or hear his father denigrate his mother in this manner yet it occurs, repeatedly.
Use of foul language, and in particular use of the word “cunt” appears to be a feature of the father’s behaviour when under stress and he loses control. There are numerous references to this in the evidence and indeed on at least one occasion the father used that word when suddenly departing from the courtroom during the trial. An example appears in the report of Ms H in relation to her interview of the father on 10 August 2018. Paragraph 4.1 of Ms H’s report includes this:
4.1… on the day of the interviews Mr. Corey was noted to arrive with his partner and his partner’s mother more than 30 minutes late for the scheduled interview. When he came into the centre he appeared angry and said that they could not drive on the M1 due to his partner’s anxiety. Mr. Corey then immediately put his hands to his face and repeated approximately 10 times, “I am a cunt”. Mr. Corey’s thought content indicated some concerns and it was obvious that Mr. Corey has a disability that impacted on how he managed his stress and emotions…
(Emphasis added)
The father was cross-examined again on 11 March 2019 in respect of a brief updating affidavit filed by the father on 5 March 2019 pursuant to Court orders regarding his attendance upon a psychiatrist and a psychologist. The father stated that he did not build good rapport with the psychologist he had recently seen and therefore commenced seeing another psychologist whom he better connected with.
The father attended upon a psychiatrist on 8 January 2019. That psychiatrist recommended a reconsideration of the father’s medication – the father having taken Sertraline for the past eight years. The father indicated that the psychiatrist told him that the medication would lose effectiveness after a period of time. The father did not accept this to be the case and sought a second opinion from his General Practitioner and the Court-appointed psychiatrist, Dr U, who agreed that the medication would not weaken over time. As a result, the father intended to obtain a referral to another psychiatrist for ongoing treatment.
It is notable that it was only after the first stage of the trial that the father even sought any intervention whatsoever by medical professionals or any psychiatric intervention and that was so notwithstanding the homicidal ideation or fantasies about violence to the mother that the father was regularly experiencing. I find that it is a profoundly troubling aspect of the father’s presentation that he obviously has such serious impediments in his functioning, yet he did not seek any expert assistance to deal with this when the need for assistance must have been obvious to him. Even by the conclusion of the trial the father had not successfully established a therapeutic relationship with a treating psychiatrist.
It necessarily follows, I find, that on the balance of probabilities there does not exist any likely prospect that at his age and stage in life, given his lack of action with respect to obtaining expert psychiatric assistance, that the father will access such assistance and, more particularly, persevere in availing himself of that assistance to successfully address his deficits, and thus the risk he poses to the mother and to the child.
Evidence of Ms Z (the maternal grandmother) re: risk issues
The maternal grandmother, gave evidence when cross-examined with the assistance of an interpreter, about the content of her affidavit, but without her referring specifically to the content of that affidavit. That is, the
cross-examination proceeded without the maternal grandmother actually reading or having access to her affidavit to refresh her memory as the questioning proceeded. That process, and the maternal grandmother’s evidence in that context, made her evidence convincing given the correlation between her oral evidence and what she had set out in the detail of her affidavit. The maternal grandmother did not depart in any material way from her affidavit evidence over the course of a fairly extensive and testing cross-examination by counsel for the father.
Whilst there may have been a degree of reconstruction by the maternal grandmother in describing some of the physical aspects of the father’s conduct she described (for example, the incident she describes of the father placing his full weight upon D’s chest) I consider that generally this witness was doing her best to convey accurately what she had observed. It is understandable that observing a man in the position of the father placing any weight or attempting to sit on his child in any way or to any degree might lead an observer, in the position of the maternal grandmother, to a somewhat reconstructed and exaggerated version of what she witnessed.
In summary, accepting as I do the overall accuracy of the maternal grandmother’s evidence, I find that there were concerning behaviours by the father as regards his loss of control when dealing with D. Specific examples included when placing D in his baby seat in the car described as follows by the maternal grandmother:[22]
34.For example, for D to sit in the car seat, the father would initially countdown from 10 to 0, if D was not seated then he would lift him up by force and put him in the car seat.
35.Then, while pressing his teeth to each other he would press his Elbow joint bone in to D’s chest with all of his power to fasten his seat belt.
(As per the original)
[22] Affidavit of Ms Z filed on 19 November 2018 at paragraphs 34 and 35.
The maternal grandmother gave other examples in her affidavit evidence of the father’s loss of control about use of language and the like and his capacity to denigrate the mother including in the presence of D and other people. For example:[23]
[23] Affidavit of Ms Z filed on 19 November 2018.
39.Then [the father] would seat on D’s chest with all his weight “to teach him a lesson”, D screaming from pain. If [the mother] was approaching him to stop [the father] from doing this, then he would swear cunt at her and leave D alone.
….
41.He verbally abused [the mother] and called her names the day he left.
…
43.However, he [the father] called [the mother’s brother] on that night and asked him to give the phone to [the mother] and threatened her again that he would come for her and would smash her face and would kill her and started to swear yet again.
…
76. One afternoon in early August, I was in the kitchen preparing the dinner.
77. [The father] was in the kitchen within 0.5 meter standing from me, and he was washing his hands or something in the sink.
78. D came to kitchen and happily looked at the food and went behind [the father’s] back and tap on his bum gently while laughing. It was similar to someone taping on someone’s shoulder. Perhaps he just wanted to get his attention.
79. [The father] without turning his back, kicked him back so hard that D fell 2 meters away.
80.[The father] did not made a move to come and check on D.
81. I screamed and asked [the mother] to come to kitchen immediately and we both attended to D who was lying on the kitchen’s floor.
82.We were lucky that D’s head did not hit the floor being only 0.5 cm above the floor. Also, they had a wooden shelf in the kitchen that D’s head could bang to.
83. Had we not been lucky by 0.5 cm and such pressure in the kick, D could have been dead.
84. D was really stressed and his chest was going up and down withholding his cry. As soon as he saw [the mother] he started to cry.
85. [The father] did not come close to check on D and walked passed him.
86.[The mother] asked [the father] why he did this to D.
87.[The father] just replied “cunt” and angrily walked away through the door.
(As per the original)
Ms H rejected the mother’s contention that D faced the prospect of bullying in mainstream schooling and that made home-schooling an advantage. Whilst Ms H acknowledged that a child with D’s difficulties might be bullied in a mainstream school, this was not Ms H’s own experience and expertise as regards special education units within schools. Ms H was confident that D would greatly benefit from attendance at such a school.
The mother challenged Ms H about the home-schooling issue by reference to the mother’s capacity to engage with other home-schooling parents and other home-schooled children to attain social interaction for D. The mother also referred to the feature that Education Queensland had approved her home-schooling plan. Ms H firmly maintained notwithstanding these things, the advantages she saw for D in undertaking mainstream schooling in preference to home-schooling. In summary, Ms H’s evidence was strongly to the effect that D would develop better in a structured school environment rather than undertaking home-schooling with his mother.
Ms J, psychologist
Ms J maintained her recommendation that D not be home-schooled during lengthy cross-examination by the mother on the topic. Ms J stated that the mother’s concerns about the potential for bullying at a school did not affect Ms J’s view that it was in D’s best interests to attend a formal school. Ms J raised the following advantages for D in attending school:
a)Schools (whether special schools or mainstream schools with a special unit) are mandated to increase inclusion and are designed to progress children into a mainstream school environment;
b)Access to trained professionals in small classes to assist D;
c)Professionals are better equipped to know what to teach D;
d)Ability to teach D the skills to deal with and manage his own behaviour;
e)Would assist D to learn about personal space by having the opportunity to be around other children regularly and socialise;
f)Some schools offer therapeutic services above and beyond that funded by NDIS although such services are subject to the funding available at particular schools;
g)Programs such as V School’s Early Days program offers courses to assist parents to prepare autistic children for school; and
h)D’s attendance at school would provide respite to the mother.
Ms J’s recommendations for D’s schooling were stated in her report as follows:
18.1.In summary, D is a lovely young boy who is likely quite frustrated by his significant communication difficulties paired with his difficulties understanding and interacting with the social world and, strong sensory processing differences. Information obtained in the current assessment indicates that D has potential to build many more skills, would benefit greatly from further communication, social-emotional and behavioural-based intervention as soon as possible. Both his profile and his current contextual circumstances point to engagement in the school-based education system being highly recommended, initially in a learning support unit with a supportive team of special education teachers and supporting allied health professionals. Or at a school specifically tailored for children with significant communication or developmental needs, for example, FG School, children with autism, for example V School. These alternatives provide center-based education and intervention services through multidisciplinary input to provide schooling alternatives to mainstream schools while supporting and empowering inclusion into mainstream school when appropriate.
…
19.5. In terms of education, home-schooling appears to be a premature and undesirable decision at this point in time. Given the history of
non-compliance with professional advice, possible restricted access to therapeutic services, and questionable developmental progress made to date, it is recommended that trained professionals in communication and behavioural intervention as well as special education trained professional teachers and allied health professionals are leading therapeutic intervention and educational work with D. Further it is recommended that this process involve parent support and education in how to understand D’s profile and how to empower his development.
…
58.7.As a final point, it has been recommended by the current assessor and at a minimum, also Professor SS, that D can transition to a school-based educational setting that has learning support services, or a specialist school for children with developmental disabilities. It has further been strongly recommended that D would further benefit from multidisciplinary team lead intervention focussing on speech and language skills, social interaction, emotion regulation skills, school preparedness and caregiver education.
(As per the original)
Ms J also recommended that the mother participate in programs such as V School’s Early Days which provides courses for parents to assist them to prepare their children for school.
Ms J’s reference to the recommendation by Professor SS appears to be reference to the report prepared by Professor SS on 13 September 2016 when D was four years of age. That report states, inter alia:[51]
…
I understand that [the mother] is very keen on homeschooling, but I think this suggestion is premature and that he currently needs enrolment in a conventional early intervention program with access to the relevant expertise and to develop [the mother’s] abilities in supporting D’s development in a number of areas.
(As per the original)
[51] Exhibit 5 at pp.7-8.
Ms J raised concerns that D was not currently “school-ready” for a mainstream school and that he needed to undertake school preparation if he were to transition into a mainstream school. However, Ms J took the view that D would be ready to commence at a special school or a school with a specialty support unit. Ms J said that the aim is to prepare D for the real world but not to throw him in without proper support.
P Group
Ms S performed a general management role within P Group; broadly managing therapy and support services.
Ms S provided information as to the services provided by P Group including occupational therapy, speech therapy, psychology and physiotherapy.
Ms S stated that she had never met D however she had spoken to therapists providing therapy for D and had also spoken to the mother over the telephone on occasion.
Ms S stated that it was her view that D be enrolled in a formal education program as opposed to being home-schooled. By that, she specified that she meant a special school or a public school with a specialist program. Ms S’ recommendation in this regard was based largely around providing D with social engagement. Ms S was aware of a number of schools in the W School catchment which provided support for students with high needs. Ms S was of the understanding that in order to qualify for a special school, D would need to be diagnosed with an intellectual impairment and as such, D may not meet the criteria for entry into a special school. Ms S believed that a diagnosis of ASD would be sufficient for D to receive support at a mainstream school.
Ms FF, an occupational therapist formerly employed at P Group gave oral evidence at trial under subpoena.
In relation to D’s education, Ms FF stated that she could not comment on whether home-schooling or mainstream schooling would best meet D’s needs given the time that had passed since she last saw D. That said,
Ms FF did consider that at the time she last saw D he would have benefited from more socialisation. Ms FF recommended that the mother take D to a playgroup to give D the opportunity to socialise with other children. Ultimately the playgroup did not go ahead as it required at least three children to be enrolled in order for it to proceed.
Ms FF stated that the mother was a demanding client and had made requests of her to change the chair in her offices and to bring D more challenging toys to play with.
Professor SS
Professor SS did not give evidence during the proceedings however a letter he had written dated 13 September 2016 was tendered into evidence,[52] which has already been quoted.
[52] Exhibit 5 at pp.7-8.
conclusions as to the schooling issue
I accept the overwhelming evidence of the experts (Ms H and Ms J) and the other independent professionals referred to that D’s attendance at formal or mainstream schooling holds enormous potential benefits for D which home-schooling by his mother does not. Conversely, I accept the evidence of those sources as to the disadvantages to D of home-schooling by his mother.
Whilst the mother is an intelligent, multi-lingual and tertiary educated person her evidence does not identify any particular education, training or experience she possesses as would equip the mother to formally educate a child, much less a child with D’s particular needs. There is ample evidence that if a task appears challenging for D, or he does not particularly like something he is directed to do, the mother’s approach is to have D desist from engaging in the task. Whilst that is an understandable approach from a devoted mother to her only child, it is not necessarily an approach which serves D’s long-term interests in gaining an education, or indeed in receiving appropriate therapy, as has earlier been discussed.
I do not accept that D is at a great risk of bullying in mainstream schooling or that such a risk is in and of itself sufficient to be a reason to deny to D the obvious other benefits of formal education as identified by the various experts in this case.
I accept the difficulties of the kind identified by the mother as to D’s resistance to attend at school and to comply in all respects with school rules may very well be encountered. However, in my judgment, relying as I do on the expert evidence in the case, if D is to have any prospect of achieving some level of independence in the longer term, and to find his own way in the world, he needs to now begin the process of relating with his peer group and interacting with individuals, other than his mother and therapists.
In my judgment, to consign D to home-schooling by his mother would socially isolate him and limit his outlook and perspectives. I accept that formal education has the advantages for D identified by each of Ms H, Ms J and the other witnesses as earlier discussed, in comparison to home-schooling.
I generally accept the submissions on this topic made on behalf of the ICL.[53] In particular I accept the submission that:
40.Despite early and consistent feedback about the benefit of D attending a public school with a special education facility, the mother’s views about home schooling have persisted, and seem to have developed by placing emphasis on anecdotal stories about bullying in public schools, without any consideration of the benefits or advice she has received about the benefits of a school-based education to D.
Resolution of the central questions
[53] ICL’s written submissions filed on 22 March 2019 at paragraphs 34-40.
Does the father pose risks of harm to D?
In the course of these reasons I have recorded findings as to the manner and respects in which D would be exposed to risks of physical or psychological harm if he were in the unsupervised care of the father. In addition to those already specifically discussed, I would add that the father obviously holds toxic views about the mother, as these were expressed by him in cross-examination. Exposure of D to those views, particularly as D develops, would obviously be contrary to D’s best interests.
I accept the evidence of Dr U, as earlier discussed, that indeed the father does pose a risk of harm to the child unless and until he successfully engages in psychiatric treatment to address the serious issues identified by Dr U as discussed.
Meaningful relationship?
The terms “benefit”, “meaningful involvement” and “meaningful relationship” as those terms appear in s 60B and s 60CC of the Act are not defined in the Act, so these terms must be given their ordinary meaning. It is well settled that the meaning to be given to words appearing in a statute is derived from the context in which the words appear. Viewed as a whole, Part VII amplifies the right or rights of a child or children on the one hand, and duties and responsibilities of parents on the other. Necessarily then, parent–child relationships are not viewed in the abstract or simply to give primacy to biological connection. The statute focuses upon benefit to the child, from the child’s perspective, of meaningful involvement by parents and meaningful relationships with parents, provided the paramount requirement of the child’s best interests is met.
In short, it would be superficial for the Court to simply proceed on an assumption that, by reason of a biological connection with a parent, any involvement at all of the child with that parent must be of benefit to the child.
The question of “meaningful relationship” looms large as an issue in this case as regards the child and his father.
In Mazorski v Albright[54] Brown J concluded that a meaningful relationship or meaningful involvement “is one which is important, significant and valuable to the child”; the word “meaningful” is “a qualitative adjective, not a strictly quantitative one”.[55]
[54] (2007) 37 FamLR 518 (“Mazorski”).
[55]Mazorski at [26].
In McCall v Clark[56] the Full Court approved of Mazorski and discussed three possible interpretations of s 60CC(2)(a). The first was described as “the present relationship approach” by which a Court focuses upon the nature of the
parent–child relationship as at the date of the hearing. The second approach, described as “the presumption approach” is that a Court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents. The third approach is the Court considering and weighing the evidence, at the date of the hearing, to determine how, if it is in a child’s best interests, orders can be framed to ensure that a particular child has a meaningful relationship with both parents (described as the “prospective approach”).[57]
[56] (2009) FLC 93-405 (“McCall”).
[57]McCall at [118].
The Full Court preferred the prospective approach, adding that “depending upon factual circumstances, the present relationship approach may also be relevant”. Notably, the Full Court expressly rejected the “presumption approach” noting that “if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language”.[58]
[58]McCall at [119].
The Full Court emphasised that the focus of the legislation is not upon the relationship as such but the benefit such a relationship might have for the child in the following observation:
[122]In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
(Emphasis in original)
In Mulvaney v Lane[59] the Full Court observed at [89]:
…The question that truly arises from s 60CC(2)(a) is not “What outcome will best ensure that [the child] has a meaningful relationship with his mother” but rather, “What is the benefit to the child of having a meaningful relationship with his mother?”…
(Emphasis in original)
[59] (2009) FLC 93-404.
The mother provided evidence that, in February 2019, D asked to see his father out of the blue (without prompting). The mother asserted that was the first and only occasion when D has requested to see the father. Following his request, the mother contacted the father and arranged for D to spend time with him on 1 March 2019. Upon arrival, the mother stated that D ran away from the father screaming “no [father]”. The mother asserted that on occasions when D would run away from the father, the father would (or attempt to) grab D by the arm and twist his arm as punishment for running away.
The mother was asked whether D loved the father. The mother responded that she was not sure; she did not think so. The mother said that D is not so impaired that he cannot form a loving attachment to someone. For example, the mother said that D asks to see the maternal grandmother sometimes up to 10 times in a day. The mother compared this to D only ever asking to see the father on one occasion and then running away when they came into contact. The mother said that D did not have the same close connection with the father that he has with the maternal grandmother. Counsel for the father challenged the mother as to her evidence that February 2019 was the first time D had ever asked to see the father. Pages 24 and 25 of Exhibit 5 are progress notes taken by D’s occupational therapist, Ms BC, following a session on 6 April 2017 (shortly after the mother ceased D’s time with the father). Relevantly, those notes record the following:
…D was extremely active and not focused today from the beginning. He was throwing things and hitting both his other and OT and was difficult to calm down.
[The mother] reported that ever since she had been told that her husband is not to have any further contact with D, D has been distressed and has been biting and hitting her and is “destroying the house”. D had called out at the supermarket “Where’s my daddy!” He does not usually call his father daddy, but calls him by his first name…
Plainly, that contemporaneous record demonstrates that the mother is wrong in her assertion as to only one occasion that D has asked about, or for, his father.
The mother conceded to failing to facilitate time between D and the father as ordered on two to three occasions in November and December 2018 which the mother attributed to being too busy preparing for the Court proceedings.
The mother agreed that she referred to the father by his first name around D and, as a result, D calls his father by his first name. The mother said that is how D has always known his father.
The mother was challenged in relation to leaving D with the father on an unsupervised basis, most recently on 25 August 2018.[60] The mother stated that was an exceptional situation because the father attended without Ms T to supervise and the mother was trying to move residence at the time.
[60] See Exhibit 31.
At the conclusion of her cross-examination, the mother surprisingly offered that the father come and live with her as her roommate until he could find suitable accommodation. The mother said that the father would live in a tent if he had nowhere to go and she would rather that he lived in her second bedroom.
Taken from the evidence of Ms T, during her time supervising D’s time with the father, Ms T observed the following:
a)D acting on his own for the most part, requesting little direction from the father;
b)On one occasion the father did not listen to direction from Ms T regarding his engagement with D;
c)That the father would swear “cunt” on occasion (approximately a couple of times per month). When he would swear, it would be out of frustration and directed to himself or his work – not to anyone in particular. The father appears unaware of who is around him.
Ms J was supportive of D spending supervised time with the father however emphasised the need for D to be given the opportunity to be prepared and properly introduced to the space if such time were to occur at a contact centre. Ms J did not support the mother’s proposal for D to see the father on four occasions per year, stating that such an arrangement would fail to provide much needed predictability and stability for D. Ms J gave evidence that three hours per fortnight would be optimal in the sense that such an arrangement would be easier for D to understand. Ms J expressed concerns that contact once per month may not be sufficient to maintain D’s relationship with the father but was beneficial in the sense that it was consistent.
Ms J agreed that a contained environment such as a contact centre would be easier for D to cope with initially although the hope would be that he is one day able to spend time with the father outside of a contact centre environment (although potentially still supervised).
At the outset of Ms J’s cross-examination by the ICL, Ms J was asked to read Exhibit 2 (being the notes from Mr B during a session where the father said that if the mother was dead, he was in jail and D was in care, that would not be bad) and Exhibits 8 and 9 (being the letter written by the father to the mother’s brother sent on 31 December 2017). Ms J was also given a summary of the evidence the father had given during cross-examination regarding his fantasies about violence, suicidal ideation (occurring about four times per year) and the fact that the father was not under the care of a treating psychiatrist or psychologist.
Despite this further information, Ms J maintained the conclusions drawn in her report dated 27 November 2018 and emphasised her recommendation contained at paragraph 57.12 that in considering whether the father should be given an increased independent caregiver role for D, a formal risk assessment ought to be conducted in conjunction with a parenting capacity assessment in order to identify the level of risk and the protective factors required to mitigate any risk. To that recommendation, Ms J added that a violence risk assessment should also be undertaken by a specialist.
I am not satisfied on the basis of those seemingly very few occasions upon which the child has been observed as appearing to enjoy some play activity with his father (for example, as observed by Ms H in her limited observations earlier referred to) that the conclusion follows that there currently exists a meaningful relationship between the child and his father or that such a relationship can be established and will be of benefit to the child.
Ms H’s observations of the father and child on 10 August 2018 bear repeating in full to draw emphasis upon the limited degree of interaction between D and his father, and their engagement in “mostly” parallel play. Paragraphs 5.2 to 5.4 are as follows:
5.2Given D appeared unwilling to do as he was being asked, I had to instruct Mr. Corey to encourage D to come into the play area and lounge room. Mr. Corey appeared to have significant difficulty managing D and when D wouldn’t do as Mr. Corey asked I observed Mr. Corey grab D by the upper arm and physically drag him through the foyer area of my office. I had to insist that Mr. Corey not physically drag D into the room and so he then took D by the hand and lead him into the playroom. D took out the ten-pin bowling activity before moving outside to play with the sandpit and totem tennis activities. I noted that D appeared to have an aversion to the sand while playing as he was constantly wiping his hands, however he did appear to enjoy this activity and playing with Mr. Corey.
5.3Mr. Corey tried engaging in a number of activities with D including playing totem tennis and also catching and throwing a basketball. I noted that Ms. Z and Ms. T were in the lounge room and they never actively engaged themselves in any activity. Ms. Z didn’t speak to D and D was never introduced to her.
5.4The observations I made of Mr. Corey and D were playful however I assessed that Mr. Corey had limited capacity to manage D without significant instruction from me. I observed some significant safety issues for D and assessed that D would have been at risk in the care of Mr. Corey without my intervention. The observations that I did make of the interactions between Mr. Corey and D demonstrated mostly parallel play. Parallel play occurs when a parents and children independently engage in an activity separately from one another. I did see some appropriate interactions when Mr. Corey played totem tennis with D and when Mr. Corey played with the sand. Unfortunately this active interaction was spasmodic and didn’t occur throughout the observation period.
(As per the original)
Whilst the maternal grandmother referred, as part of her evidence, to a “mutual loving relationship” between the child and the father, her evidence is overwhelmingly to the effect of the concerning interactions between the child and his father by reason of the father’s lack of control.
Dr U’s evidence included reference to the difficulties for the father concerning his “congenital relative inability” to make meaningful lasting friendships and to form intimate relationships. Plainly the father has very significant difficulties in his interactions with D.
Concomitantly, Mr EE who had the opportunity to observe the father/child interaction on a number of occasions expressed doubts about the child’s ability to engage with the father. The general thrust of Mr EE’s evidence was to the effect that the father heavily relied upon his supervisor to direct the interactions between the child and his father.
I have already referred to Dr U’s opinion in cross-examination as to the impact upon both D and his father of their respective capacities to maintain an ongoing meaningful relationship. It bears repeating that Dr U’s opinion was to the effect that given his age and stage in life it could be said to be unlikely that the father’s skills will improve greatly.
There is the added concern, as referred to by Dr U, that if the father’s relationship with his current partner, Ms Z, is unstable or ends that this would create a “major concern for stressors” which could produce a deterioration in the father’s mood, depression and functioning. There is reason to be concerned about this.
As to that aspect, Ms T gave evidence at the outset of her examination-in-chief that her sisters (who live in the same property as Ms T, Ms X and the father) had requested that the father move out by the end of March 2019. Ms T gave evidence that she thought her daughter’s relationship with the father was a bit “up in the air” at the time of her cross-examination. She stated that while they had not formally separated, their relationship was “up and down”.
Ms X gave evidence that while they were still in a relationship, she was supportive of her mother’s (and family’s) request for the father to move out of their property. She indicated that it would give her an opportunity to reassess her relationship with the father and its future.
Ms X stated that she could not afford to move out of the property with the father as she was unemployed and in receipt of a Newstart allowance. She also stated that she wanted to remain living in the house with her mother. Thus at the very least the father will have to move out but Ms X will not accompany him and will “reassess” their relationship.
Whilst Ms H expressed the general and understandable proposition that it is usually of benefit to children to have a relationship with both parents so that they can know both parents and have both parents involved in their life (matters reflected in the legislation already referred to) the authorities earlier referred to direct the enquiry specifically to whether or not the child will benefit from a meaningful relationship with a parent.
As already noted, Ms H acknowledged in her oral evidence the limitations upon each of the father and D in terms of their respective capacities to have a meaningful relationship with each other.
Mr EE’s evidence of observing the father being unsure as to how to relate to D and in turn D being physically distant and largely unresponsive towards the father, resonated.
Reference has already been made to the authorities concerning long-term supervision. Undoubtedly if time were ordered it would have to take place supervised at a contact centre unless and until the father’s mental health issues are addressed successfully, which may never occur. In my judgment, the likelihood is that in that setting it would be the supervisor who would direct any interaction between D and his father, rather than the father having that capacity.
In my judgment, it is not established on the evidence overall that the father currently has a relationship with D that could be described as a meaningful relationship as described in the authorities to which I have referred. Moreover, I have no confidence that either the father or D can establish such a relationship in the current circumstances or the foreseeable future. By current circumstances I include the unfortunate circumstances of the father’s mental health position which has been left untreated in circumstances where, as Dr U emphasises, there is a critical need for treatment.
Whilst Dr U obviously had reservations about the father being able to address his difficulties, Dr U illuminates a pathway for the father to follow in terms of concerted treatment and review of medication and, in particular, the establishment of a therapeutic relationship with an expert psychiatrist attuned to the father’s needs. It may be that at some time in the future the father’s presentation is different, he having resolved, with the benefit of concerted psychiatric treatment, the very troubling aspects concerning his attitudes to the mother and potential imparting of those attitudes to D.
In that event it will be open to the father to bring further parenting proceedings provided he can demonstrate a relevant change in circumstances so as to address the rule in Rice and Asplund.[61]
[61] (1979) FLC 90-725 (“Rice and Asplund”).
In summary, I am not satisfied that I can conclude that there would be benefit to the child of having a meaningful relationship with his father, as I do not see how it can be concluded that such a relationship currently exists or is achievable in the current circumstances or in the foreseeable future.
Orders in the child’s best interests
As noted, by the conclusion of the trial the parents and the ICL joined in seeking an order that the mother have sole parental responsibility for major long-term decisions for the child. For the reasons already discussed, I am satisfied that such an order meets the child’s best interests.
Each of the ICL and the father seek additional orders requiring the mother to give the father an opportunity to have some input in decision-making. The mother is opposed to that. However, I have raised and discussed significant concerns held about the mother’s decision-making concerning the child’s therapy and in relation to the schooling issue. In my judgment it provides something of a safeguard for the child for the father to have the opportunity to have some input into decisions to be made concerning long-term issues, and that also provides a basis for the Department to involve the father in decision-making for the child.
There is no issue about an order being made for the child to live with the mother. Plainly such an order is in accordance with the child’s best interests and there is in reality no alternative option currently.
I have concluded that the lack of a meaningful relationship between the child and the father currently; the limited prospects of that position ever changing; with the risks issues superimposed; leads to the conclusion that it cannot be concluded that there is benefit to the child of having a meaningful relationship with his father. In short, I am not satisfied that such a current relationship exists between the child and the father nor am I satisfied that one is likely in the future.
For these reasons I adopt the submission of the ICL concerning making no order for time as the meaningful relationship criteria is not fulfilled, together with the findings I have made as to the balance of best interests considerations.
I acknowledge it is a significant thing indeed to make no orders for time between a child and a parent. Dr U, in particular, has flagged to the father the means by which he might in future be able to satisfy a Court of a material change in his circumstances, that is, by obtaining and successfully pursuing psychiatric treatment. Obviously, s 65D reflects that parenting orders are never final in a strict sense although any litigant may confront what is known as the rule in
Rice and Asplundin seeking to re-engage in parenting proceedings.
I hope, in D’s best interests, that I am ultimately proven to be wrong about the father’s capacity and willingness to address his mental health issues by way of concerted psychiatric treatment which succeeds.
Whilst the mother contended for time occurring between the child and the father on four occasions per year, it is my judgment that orders to that effect will do nothing by way of establishing or maintaining a meaningful relationship between the child and the father and I reiterate Dr U’s concerns about the mother’s engagement with the father notwithstanding his mental health issues. That is, Dr U emphasised the need for there to be no opportunities for communication directly between the parents in the interests of minimising the father’s mental health issues concerning the mother.
Obviously, with the mother having sole parental responsibility, she might elect to at some point have the child spend time with, or communicate with, the father. However, I note that the Department have noted clear concerns about the child having any unsupervised time with the father and in any event one could only hope that the mother takes on board the evidence of experts such as Dr U as to the need for any time to be supervised within the confines of a contact centre. In making these observations I am by no means supportive of the notion that there be time and communication between the child and his father, in advance of the father successfully addressing his mental health issues. These observations are made with the practical realities in mind that the mother may take it upon herself to do as she sees fit, irrespective of the findings I have made and the orders.
By the same process of reasoning, and accepting Dr U’s opinion, I have declined the father’s proposal that he be able to communicate with the child via Skype, FaceTime or telephone. I do not see that, given in particular the child’s limitations, that is likely to be in any way successful, and in any event is not dictated in the absence of a meaningful relationship between the child and his father of benefit to the child.
I will make an order as to the father being at liberty to send some written communications and cards and presents. This is on the basis that the child is entitled to know or be aware of the feature that he has a father who retains interest in his child and also this caters for the prospect, however unlikely, that the father can successfully address his mental health issues in the manner postulated by Dr U such as to demonstrate a sufficient change in circumstances so as to revisit parenting arrangements at some time in the future.
As to communication I will make the order by way of injunction upon each parent restraining them from communicating with each other except in written form and for specific reasons.
The other orders I make concerning communication and in relation to authorisations are hopefully self-explanatory as being in the child’s best interests.
I intend to impose orders in relation to the child’s therapies. I have expressed my reservations and concerns about the mother’s approach to this issue. I note the Department’s proposed engagement with the mother on this issue which in my judgment is needed and which provides a safeguard for the child.
Likewise I will make orders in relation to the child’s schooling requiring that the child undertake some formal process of education. Obviously, if he proves eligible to attend a special school then that is what should occur. The next best alternative is for the child to attend the V School on a full-time basis but in the event that school cannot accommodate him on a full-time basis or for five days per week, the mother should be permitted to supplement his education by way of home-schooling on the days which the V School is unable to accommodate the child.
Failing a special school or attendance at V School being an option the mother will be required to enrol the child in formal schooling. The mother sought not to be confined, in this event, to the W School and I have included in the orders accommodation for her request in that respect.
Given my acceptance of Dr U’s evidence as to the lack of utility in the father attending parenting courses I decline to make that order. It will be a matter for the father to undertake, with a treating psychiatrist, the “social skills parenting training” referred to by Dr U should he wish to bring further parenting proceedings in future. I am satisfied that it is in the child’s best interests to order that the father engage with a consultant psychiatrist and that for that purpose orders be made releasing otherwise restricted information, such as medical reports and the like and these reasons for judgment, to the father’s consulting psychiatrist.
The balance of the orders are self-explanatory.
For these reasons I make these orders set out at the commencement of them.
I certify that the preceding three hundred and forty-four (344) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 29 May 2019.
Associate:
Date: 29 May 2019
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