Darvall & Darvall
[2021] FamCA 606
•18 August 2021
FAMILY COURT OF AUSTRALIA
Darvall & Darvall [2021] FamCA 606
File number(s): MLC 4599 of 2021 Judgment of: WILLIAMS J Date of judgment: 18 August 2021 Catchwords: FAMILY LAW – CHILDREN – Application for review of parenting orders made by Senior Registrar for a 14-week-old child in circumstances where the applicant birth mother asserts that the child has been adversely impacted by the prior arrangements for the care of the child – Where the biological mother also seeks a variation of the previous parenting orders including overnight time with the child – Highly conflictual parental relationship – The single expert report from a child psychiatrist does not support the continuation of the existing arrangements – Previous orders discharged and new orders made to consider the developmental and attachment needs of such a young child and the stability and continuity of the feeding and care routine. Legislation: Family Law Act1975 (Cth) Pt VII, ss 60B, 60CA, 60CC
Family Law Rules 2004 (Cth) rr 18.08, 18.10
Cases cited: Goode & Goode [2006] FamCA 1346
Mazorski v Albright [2007] FamCA 520
Number of paragraphs: 60 Date of hearing: 9 & 11 August 2021 Place: Melbourne Counsel for the Applicant: Ms Bonney Solicitor for the Applicant: Keypoint Law Counsel for the Respondent: Ms Lawson Solicitor for the Respondent: Nicole Evans Lawyers ORDERS
MLC 4599 of 2021 BETWEEN: MS A DARVALL
Applicant
AND: MS B DARVALL
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
18 AUGUST 2021
THE COURT ORDERS THAT:
1.All previous parenting orders in relation to the child X born …April 2021 (“the child”) be discharged.
Until further order:
2.The birth mother and biological mother have equal shared parental responsibility for the child.
3.The child live with the birth mother.
4.The biological mother spend time with the child as follows:
(a)from the date of these orders for a period of eight weeks as follows:
(i)every Monday, Wednesday and Friday for a period of three hours from 1.15 pm to 4.15 pm, in Suburb C, unless otherwise agreed by the mothers, having regard to the child’s routine;
(ii)every alternate Saturday for a period of four and a half hours from 1.00 pm to 5.30 pm, at the home of the biological mother, unless otherwise agreed by the mothers having regard to the child’s routine.
(b)at the expiration of the eight week period referred to in paragraph 4(a) hereof and upon the biological mother relocating to City D as follows:
(i)every Monday and Wednesday for a period of three hours from 1.15 pm to 4.15 pm, in Suburb C unless otherwise agreed by the mother’s having regard to the child’s routine;
(ii)every Friday for a period of three and a half hours from 2.00 pm to 5.30 pm, in City D unless otherwise agreed by the mothers having regard to the child’s routine;
(iii)each alternate Saturday for a period of four and a half hours from 1.00 pm to 5.30 pm, at the home of biological mother, the unless otherwise agreed by the mothers having regard to the child’s routine.
5.In the event the biological mother does not relocate to City D, then all time on Monday Wednesday and Friday shall be in accordance with the time in paragraph 4(a)(i) of these orders.
6.When the child spends time with the biological mother at her home, the birth mother deliver the child to the home of the biological mother at the commencement of time and the biological mother will return the child to the home of the birth mother at the conclusion of time.
7.Both mothers be permitted to breastfeed the child.
8.The parties forthwith engage in family therapy, with a family therapist to be agreed within seven days, with the costs of such therapy to be shared equally.
9.Both mothers exchange information on a weekly basis as to the child’s feeding arrangements and routine.
10.The child travel in the same capsule with his comfort toys for all changeovers.
11.Both mothers ensure that both parents details are recorded at all of the child’s medical practitioners, including and not limited to the child’s GP, maternal child health nurse, paediatrician and osteopath.
12.In the event the child is required to be hospitalised whilst in the care of one mother, the mother forthwith notify the other mother enroute to hospital so that both mothers are able to attend the hospital.
13.The parties participate in a mediation prior to the adjourned date, with a mediator to be agreed between them, and the costs of such mediation to be shared equally.
14.All interim applications are otherwise dismissed.
15.The proceeding be adjourned for mention before the Honourable Justice Williams on 6 December 2021.
AND THE COURT NOTES THAT:
A.For the purpose of clarifying orders requiring the biological mother’s time to take place in Suburb C, such order is not to be construed as requiring the birth mother to be in substantial attendance during such time.
B.The birth mother has offered and the biological mother has accepted her time with the child in Suburb C may take place in the home of the birth mother.
C.The arrangements for the child on Christmas Day 2021 will be determined on the adjourned date, as there were no submissions made about Christmas day time.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Darvall & Darvall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J:
INTRODUCTION
This matter was listed for determination in the judicial duty list on 9 August 2021and rolled over for interim hearing on 11 August 2021. The application before the court was the applicant mother’s Application in a Case filed 21 May 2021 and amended Application in a Case filed 1 June 2021 seeking a review of the orders of the Senior Registrar made on 20 May 2021 and the respondent mother’s Response to an Application in a Case filed 28 May 2021. The proceedings relate to the interim arrangements for the parties child.
BACKGROUND
The parties commenced a de facto relationship in April 2019 and separated on 9 February 2021.
The applicant mother is the birth mother of the child X born in April 2021 and the respondent mother is the biological mother of the child. The father of the child is a donor father and does not wish to participate in the proceedings. The child was conceived by IVF whilst the mothers were in a relationship. They separated when the biological mother was seven months pregnant.
The birth mother lives in Suburb C and the biological mother lives in E Town, approximately 50 minutes to 1 hours’ drive apart.
The biological mother is the primary carer of the child with the respondent mother spending time with him in accordance with the orders of 20 May 2021.
Prior to the child’s birth, the respondent mother commenced proceedings in the Supreme Court of Victoria seeking that she have primary care of the child upon the child’s birth, the child live with her upon discharge from hospital, she be permitted to breastfeed the child on his birth and that the birth mother spend time with the child for two hours each day. The application was listed in the Supreme Court on 28 April 2021.
In April 2021, the child was born and the birth mother filed an urgent proceedings in the Family Court seeking orders that the biological mother be restrained from attending the hospital whilst she and the child were inpatients, the child live with her and that the biological mother spend supervised time with the child three times a week for no more than one and ½ hours on each occasion with such time to occur at her home.
On 27 April 2021, the application to the Supreme Court was discontinued by the biological mother.
On 28 April 2021, the application in this court was listed before the Senior Registrar. On that day, the biological mother filed a Response to the proceedings seeking orders that the child live with her and that the birth mother spend time with the child every second day for a period of two hours, with such time to be spent within 15km of the home of the biological mother.
On that day, orders were made by the Senior Registrar for the child to live with the birth mother, the birth mother to have sole parental responsibility for the child and for the biological mother to spend time with the child for a period of two hours every second day, to take place within a 10km radius of the home of the birth mother, with the biological mother’s mother to be in substantial attendance during that time and for the biological mother not to breastfeed the child.
On 18 May 2021, the biological mother filed an Amended Response seeking to discharge of the orders made on 28 April 2021, that she be permitted to breastfeed the child, that both mothers have equal shared parental responsibility, the child live with the birth mother and that he spend time with her as follows:
(a)from the date of the orders for a period of three months each alternate day between 12.00 pm and 5.00 pm;
(b)for three months after the conclusion of the period referred to in (a) hereof, each alternate day between 9.00 am and 5.00 pm;
(c)for six months after the conclusion of the period referred to in (b) hereof each Monday and Wednesday between 9.00 am and 5.00 pm and each Friday from 1.00 pm until 1.00 pm on the following Saturday.
On 20 May 2021, the Senior Registrar made orders discharging the orders of 28 April 2021, that both mothers be permitted to breastfeed the child, both mothers have equal shared parental responsibility, the child live with the birth mother and that he spend time with the biological mother as follows:
(a)from the date of the orders for a period of three months, each alternate day between 12.00 pm and 5.00 pm;
(b)thereafter until 1 December 2021, each alternate day between 9.00 am and 5.00 pm;
(c)from 1 December 2021:
(i)each Monday and Wednesday between 9.00 am and 5.00 pm;
(ii)each Friday from 1.00 pm until 1.00 pm on the immediately following Saturday.
Immediately following the orders of 20 May 2021, the birth mother filed an Application for Review and stay of those orders. The stay application was listed before the Senior Registrar on 21 May 2021 and was dismissed.
On 8 June 2021, the review application was listed before a judge of this court who directed the parties to attempt to resolve matters informally, and if negotiations were unsuccessful the matter would be relisted to determine outstanding interim issues.
The parties negotiations were not successful and the matter was listed in the judicial duty list before me on 9 August 2021.
APPLICABLE LAW
Rule 18.08 of the Family Law Rules 2004 (Cth) provides for review of decisions by a Senior Registrar, referred to in the Rules as a Registrar.
In accordance with Rule 18.10 the application for review was heard as an original hearing.
Part VII of the Family Law Act1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how court is to determine what is in a child’s best interests.
Goode & Goode [2006] FamCA 1346 sets out the pathway for conduct of interim parenting proceedings.
Both parents seek alternate orders to those made on 20 May 2021. During the course of the hearing on Monday, 9 August 2021, including an unsuccessful application by the biological mother for adjournment of the interim hearing, the biological mother conceded that the child should remain in the primary care of the birth mother. The dispute between the mothers was therefore limited to the frequency and length of time between the child and the biological mother and the geographical location of that time.
The agreed facts are as follows:
(a)the child lives with the birth mother and that she is his primary carer;
(b)both mothers should have equal shared parental responsibility for the child;
(c)the child requires consistent regular time with his biological mother;
(d)both mothers have the capacity to care for and breastfeed the child;
(e)neither mother poses a risk to the child;
(f)the child has had problems with gaining weight.
The birth mother seeks orders for time between the child and the biological mother as follows:
(a)that the child spend time with the biological mother, as agreed between the parties having regard to the child’s routine and best interests and in default of agreement as follows:
(i)every Monday for two hours;
(ii)every Wednesday for two hours;
(iii)every Friday for two hours;
(iv)each alternate Saturday for a period of up to 5 hours;
(v)such further and other times as may be agreed between the parents having regard to the child’s routine;
(b)the child’s mid-week time with the biological mother take place at Suburb C;
(c)the child’s weekend time take place at the home of the biological mother in E Town.
The biological mother seeks orders for time between herself and the child as follows:
(a)for a period of six weeks from the date of these orders in a two week cycle as follows:
(i)Week 1:
(A)on Monday from 12.00 pm to 5.00 pm in Suburb C;
(B)on Wednesday from 12.00 pm to 5.00 pm in Suburb C;
(C)on Saturday from 11.00 am to 5.00 pm in E Town;
(ii)Week 2:
(A)on Monday from 12.00 pm to 5.00 pm in Suburb C;
(B)on Wednesday from 12.00 pm to 5.00 pm in Suburb C;
(C)on Saturday from 11.00 am until Sunday 11.00 am in E Town;
(b)thereafter, once the biological mother has relocated to City D, in a two week cycle as follows:
(i)Week 1:
(A)on Monday from 12.00 pm to 5.00 pm in City D;
(B)on Wednesday from 12.00 pm to 5.00 pm in City D;
(C)on Saturday from 11.00 am to 5.00 pm in City D;
(ii)Week 2:
(A)on Monday from 12.00 pm to 5.00 pm in City D;
(B)on Wednesday from 12.00 pm to 5.00 pm in City D;
(C)on 11.00 am Saturday until 11.00 am Sunday in City D;
(c)the birth mother is to deliver the child to the biological mother’s residence at the commencement of time and the biological mother is to deliver the child to the birth mother’s residence at the conclusion of time.
Both mother sought ancillary orders in similar terms pertaining to sharing of information, the child travelling in the same capsule, recording each parent with each of the child’s medical practitioners, notification of hospitalisation of the child, engaging in family therapy and mediation. I agree such orders are warranted and will make orders in these terms.
Despite the vigorous submissions of both counsel and the seemingly polarised positions of both mothers, the dispute can be distilled as to whether:
(a)the child spends time with the biological mother each Monday and Wednesday for a period of two hours or five hours;
(b)such time takes place in the home of the biological mother after a six week period, when it is proposed that the biological mother would relocate to City D or should remain in the home of the birth mother;
(c)the daytime time on each alternate Saturday should be for a period of up to 5 hours, or for six hours;
(d)the child should spend overnight time with the birth mother each alternate weekend in her home for a 24-hour period.
The birth mother relied on the following documents:
(a)Affidavits of the birth mother of 1 June 2021 and 6 August 2021;
(b)Affidavit of Dr F of 2 August 2021 together with clarification letter;
(c)Outline of Case of 6 August 2021.
The biological mother relied on the following documents:
(a)Affidavits of the biological mother of 6 August 2021 and 9 August 2021;
(b)Documents in both tender bundles provided to the Court;
(c)Outline of Case of 6 August 2021.
The submissions made by counsel for the birth mother, in support of the orders sought by her client were as follows:
(a)as the birth mother is the child’s primary attachment, it is not in his best interests to be away from her for lengthy periods of time and the current care regime is not sustainable;
(b)there are biological and neurobiological imperatives for the child to foster that attachment and to settle into a food and sleeping routine;
(c)the trust and acclimatisation of the child to his primary carer should take precedence;
(d)too much time away from his primary carer could result in a split and dislocated attachment for the child;
(e)according to Dr F, the absence of a primary attachment figure in very young children can lead to loss, fear and distress;
(f)the current travel cycles and change of care every second day disturb the child’s feeding and sleep cycles, which may result in poor growth and development;
(g)the schedule of time provided in the current orders interferes with the process of secure attachment for a 14-week-old baby and does not serve the child’s needs;
(h)the child’s needs are best served by a consistent care routine, a stable and settled environment to enable him to foster a secure attachment with his primary carer;
(i)regular short periods of time with the biological mother, which are not contrary to the child’s routine, better address his needs;
(j)the orders sought by the birth mother are in accordance with the recommendations of Dr F and will reduce destabilisation of the current care routine and will reduce travel;
(k)the proposals of the birth mother a more generous than a father in this situation would enjoy.
In support of her submissions, Counsel for the birth mother relied upon the evidence of both the mother and Dr F.
The birth mother’s evidence as to the problems encountered by the child with the current arrangements is substantially in her affidavit of 6 August 2021 and is as follows:
(a)the current orders require the child to travel for up to 2 hours each alternative day (at [10]);
(b)the child does not sleep regularly in the car and his normal wake/sleep routine is interrupted every second day to facilitate time with the biological mother (at [11]);
(c)her observation of the child following the initial five periods of time with the biological mother are as follows (at [13]):
(i)the travel had a detrimental impact on the child’s sleep routine;
(ii)the child who is usually settled and calm had become irritable and unsettled to the point where he would sometimes scream for up to four hours after his time with the biological mother, and he was unable to be soothed in the same way he ordinarily would be;
(iii)his feeding routine was impacted so that he started to feed every two hours, when he had previously been feeding every three to four hours and his feed times were lasting longer than they normally did;
(iv)the child no longer slept for continuous periods and would only settle if held in her arms, whereas previously he was easy to settle without being held;
(v)the child had gone from being a calm, attentive and engaged baby to being overtired, irritable and unsettled;
(d)the child has become increasingly more unsettled and failed to thrive (at [14]);
(e)the impact of the orders has become progressively worse (at [15]);
(f)his sleep continues to be adversely impacted as he does not always sleep in transit and he misses his long nap between late morning and early afternoon (at [16]);
(g)the purchase of a capsule to enable the child to transition between his two mothers without being woken, has not address the issue as the child wakes once the car stops, or does not sleep at all (at [17]);
(h)the child is unable to link his sleep cycles which usually lasts for 45 minutes and requires resettling to enable him to do so (at [18]);
(i)the child is very irritable in the car and whilst previously he would fall asleep shortly after the drive commenced, he now screaMs Gor between 15 to 20 minutes each time they leave home before he exhausts himself and falls asleep. Sometimes the child requires to be breastfed on the way, in order to settle him (at [19]);
(j)the child is withdrawn and clingy after his return, is often exhausted and falls asleep within the birth mother’s arms within five minutes of being home. That impacts his capacity to feed as he is so tired and his feeds sometimes take up to one hour to complete (at [20]);
(k)on 19 July 2021, at an appointment with the maternal child health nurse (“MCHN”) the child had only gained 350 grams in a four-week period whereas prior to the implementation of the orders his weight gain had been sufficient (at [21], [22] and [23]).
I will address the evidence of Dr F later in these reasons.
The submissions made by counsel for the birth mother, in support of the orders sought by her client were as follows:
(a)the concession of the biological mother that the child should live primarily with the birth mother was a significant concession, which was made in light of some of the evidence of Dr F and with an eye to the future care of the child;
(b)the biological mother was threatened by the circumstances surrounding the child’s birth, as she had no certainty as to when she would see the child, nor spend time with him in the future. She was lactating at the time and had a biological imperative to nurture the child and be integrally involved with the birth;
(c)the Court cannot be satisfied that there is a nexus between the child’s failure to gain adequate weight and the current care arrangements, as there may well be an underlying organic reason;
(d)there is objective evidence that the child is doing well despite the current care arrangements, namely:
(i)the birth mother’s evidence about her visit to the MCHN on 5 August 2021 at [25] of her affidavit of 6 August 2021;
(ii)the report of the child’s paediatrician (annexure 2 to the affidavit of 6 August 2021);
(iii)the favourable report of the child osteopath (page 55 of the first tender bundle);
(e)the biological mother has the capacity to care for and settle the child as observed by Ms G, lactation consultant, in her report in tender bundle 2, and she has had the opportunity to observe the biological mother with the child on four occasions;
(f)the orders proposed by the biological mother represent a significant change and reflection about what is in the child’s best interests, namely:
(i)the biological mother proposes to travel twice a week to the birth mother’s home in Suburb C to reduce the child’s travel;
(ii)she proposes to spend time with the child in the birth mother’s house on two out of three occasions, as proposed by the birth mother, noting that does not require her to remain in the house for the whole of the time;
(iii)she is prepared to move to City D notwithstanding that her business is in E Town, to reduce the commute time to 35 minutes;
(iv)the proposal for overnight time on a fortnightly basis is in accordance with the recommendations of Dr F and enables the biological mother to be involved with the child so that she is aware of all of the banality of parenting a young baby;
(g)despite the highly conflictual dispute in court and the mothers have been able to reduce the day-to-day conflict in their communications with each other and there have not been any severe altercations at change over, since family members of both parents have been excluded from change over.
Dr F is a consultant child psychiatrist who was jointly engaged by the parties as a single expert witness following the listing of the proceeding in June 2021. She conducted zoom interviews of both mothers in mid-June 2021 and provided a report dated 28 June 2021. On 15 July 2021 she received correspondence from the party’s solicitors seeking clarification about her report, and on 23 July 2021 provided a letter of clarification. All relevant documentation is annexed to an affidavit sworn by her on 2 August 2021. As this was an interim hearing, Dr F was not cross-examined and neither counsel suggested that she should be. The Senior Registrar obviously did not have the benefit of the report when the orders were made on 20 May 2021.
Both Counsel made submissions about the relevant paragraphs of Dr F’s report and clarification letter, which supported their respective clients.
The relevant paragraphs of Dr F’s report, which were relied upon by counsel for the birth mother are as follows:
(a)the biological mother reported to Dr F that she was open to changing the arrangements to better fit in with the child’s needs and that shorter contact, where she takes him out in Suburb C between he sleeps at the birth mother’s home is an option (at [74]);
(b)the biological mother was preoccupied with her desire to be the primary caregiver and spend as much time as possible with the child (at [75]);
(c)the child was unsettled for the majority of the observation session with the biological mother and she became agitated stating it felt weird to be watched and appeared self-conscious (at [77]);
(d)the child has potentially had periods of physiological trauma states which may have contributed to his low birth weight, poor initial weight gain, foetal distress and recent unsettled periods. There are potentially lifelong implications for his neurobiology which can be mitigated if he can now be effectively soothed and given opportunities to establish more regulated rhythms/routine (at [102]);
(e)the mother’s engaging in therapeutic work could protect the child from the potentially prolonged and repeated toxic stress of the dispute, grief guilt and shame (at [103]);
(f)the child’s attachment style has not developed at this stage (at [104]);
(g)from the child’s perspective the relationship with the birth mother is initially closer given the physicality of the shared experiences (at [105]);
(h)it has been more difficult for the biological mother to recognise the nature and vulnerability of perinatal period with regard to her approach to the proceedings and how her behaviour could impact on the child through being experienced as threatening by the birth mother. The personal and legal dispute has disrupted the birth mothers need to be preoccupied with self-care, the delivery and establishing the early relationship with the child including feeding (at [106]);
(i)she gained the impression that the biological mother was placing herself under enormous pressure to fast track the attachment, that she has not settled into her role as a mother or started to process her feelings and appeared very anxious during the assessment which contributed to her doing many things for the child in a way that appeared to be too fast paced, disorganised and intrusive (at [112]);
(j)her clinical inference was that the biological mother had greater ambivalence about providing the physical aspects of mothering and she thought that she was struggling with competitive and jealous feelings she found difficult to acknowledge, which were undermining her confidence (at [113]);
(k)at this stage her impression is that the birth mother will have greater capacity to be the primary caregiver during the infant period (at [114]);
(l)at this stage the travel time appears to be disrupting the child’s rhythms and making it more difficult for both mothers to settle him and contributing to his need to be held or calmed with movement (at [124]);
(m)the more threatened the mothers each feel the more difficulty the child will have with strong emotions and unsettled behaviours. If they do not trust each other the child will struggle to trust either of them even if they are calming when they are with him (at [125]);
(n)if the court decides the birth mother is to be the primary caregiver, she recommends the biological mother tries to do less to nourish and comfort the child during contact (at [128]);
(o)she recommends that whichever parent is the primary caregiver travels less to reduce the fatigue associated with greater physicality of the role, including sleep deprivation (at [130]);
(p)the current parenting plan, which although it is helpful to potentially facilitate reunification with the birth mother, is not sustainable (at [134]);
(q)she recommends a child focused mediator or family therapist helps the mothers navigate decisions as needed (at [135]).
Counsel for the birth mother submitted that Dr F did not have the current medical proof of the child’s current progress and at the time of her report did not know that top up feeding had commenced and that the child was tracking well with his weight gain. On the face of the report there appears to be concern about a non-organic cause of the child’s failure to thrive. In the context of the current evidence about the child’s health, the concerns expressed by Dr F may be misplaced. In my view, the opinions expressed in Dr F’s report were not primarily predicated on the child’s failure to gain weight, but rather addressed the significant disruption to the child’s routine, capacity for attachment to his primary carer and the impact of travel on the child and his primary carer, the birth mother.
The relevant paragraphs which were relied upon by counsel for the biological mother are as follows:
(a)it was important to note that his consolable crying states coincide with normative patterns of infant crying peaks, and in other words sometimes babies do just cry (at [102]);
(b)in her clarification letter, at [2], she recommends, that once the child has stabilised, he has fortnightly overnight stays rather than weekly, with the biological mother.
Discussion
This is a very troubling dispute which must be considered in the context of the intense and bitterly fought litigation which has been the focus of the parties’ lives for the past fourteen or so weeks, which commenced shortly prior to the birth of the child.
A few days prior to the birth of the child, the biological mother issued proceedings in the Supreme Court seeking that the child be removed from the birth mother, within a few hours of giving birth, and to be placed in the primary care of the biological mother.
According to the birth mother, the birth of the child took place in circumstances where she felt so distressed and threatened that she gave birth to the child prior to the due date and within a short period after becoming aware of the Supreme Court application.
The birth mother, upon the birth of the child, issued proceedings in this Court and was faced with a response by the biological mother that the child should be removed from her care and live primarily with the biological mother. That was a position of the biological mother until 9 August 2021 when she conceded that the child should remain living primarily with the birth mother.
Counsel for the biological mother submitted that it was not only the birth mother who felt threatened, the biological mother found herself in circumstances where she did not meet the child for three days after his birth and the issue of her future time with the child was uncertain which also impacted and threatened the biological mother. Whilst I accept there may be some basis for that submission, the threat of removal of a child from a birth mother within hours of giving birth, cannot be underestimated and is demonstrative of a punitive and aggressive attitude, whether or not that was intended.
The issue of the Supreme Court proceedings, and the subsequent response in the proceedings in this Court, demonstrate a significant lack of insight on the part of the biological mother as to the impact on the birth mother and the consequential impact on the child. The dispute between the parents has been acrimonious in the extreme and one that seems to me to be competitive in nature as to the allocation of time between the parents, rather than focusing on the best interests of a now 14-week-old baby.
There seems to have been little regard to the actual routine of such a young baby and the attendant potential difficulties facing the baby’s primary carer, the birth mother. Orders requiring a child at three weeks of age to travel in a car for two hours a day and disrupting his routine and continuity of care, would never be sustainable and could not possibly be considered in the child’s best interests. Dr F shares my view that the current orders are not sustainable (at [134]).
I accept the evidence of the birth mother as to difficulties she has encountered with caring for the child and the disruption to his routine, after time has taken place in accordance with the existing orders. She has deposed to considerable difficulties settling the child upon his return from time with the biological mother and problems she has encountered in transporting the child for a relatively lengthy period each alternate day. It is obviously not possible to challenge that evidence on an interim basis, but her concerns are inherently plausible. She is the one who is responsible for the majority of the child’s care including overnight care. The birth mother’s evidence of encountering difficulties in transporting the child in the car, and having to stop on the side of the road to breastfeed and settle the child are entirely consistent with the biological mother’s evidence that the birth mother sometimes arrives late to her home, although I acknowledge there may also be other reasons for late arrival. In addition to the concerns identified by the birth mother, as identified by Dr F, she is likely to experience fatigue, because of the greater physicality of the role of a primary caregiver, including sleep deprivation.
I also accept the evidence of the observations of the birth mother by the lactation consultant, Ms G that whilst in her own home, and not being observed for the purposes of an expert report, the birth mother is capable of settling the child and is responsive to his needs. That observation is not inconsistent with the evidence of the birth mother of the difficulties she encounters following the child’s return to her care and does not challenge the evidence of the birth mother in that regard.
I also accept that I am unable make any definitive finding as to the cause of the child’s past failure to thrive and gain weight adequately. It may well be due to him not being able to settle properly or it may be due to other organic causes, or alternatively a combination of both. However, fortunately for all concerned the child now appears to be putting on weight and receiving excellent medical care, including a review by a paediatrician.
Both Counsel, as referred to in their respective submissions sought to emphasise the aspects of Dr F’s report which they submitted supported their respective client’s proposals. I accept Dr F’s evidence is the only independent and objective evidence in this dispute.
It is clear that Dr F considers the child requires a primary carer and stability and consistency of care and routine. In the context of the concession of the biological mother made during the course of the interim dispute, the birth mother is the primary carer of the child. Her observation at [4] of her letter of clarification, is that quality of contact is more important than the frequency of contact and that infants do better in familiar settings where their caregiver feels safe and relaxed. That opinion is consistent with the frequently quoted statements of Brown J in Mazorski v Albright [2007] FamCA 520.
Dr F also states in her clarification letter at [2], that she recommends that the birth mother travels to Suburb C for contact during the week and has contact after his sleep to protect his routine. That recommendation was not seriously contested by the biological mother, and indeed adopted in her proposal for the first six weeks of time following this hearing, prior to her intended relocation to City D.
As to whether the child should spend overnight time with the biological mother, Dr F’s recommendations in her letter of clarification are prefaced with the statement that once the child has stabilised, she recommends he has overnight contact on a fortnightly basis rather than weekly, given he is more familiar with the birth mother and she has been his primary carer.
That is not an invitation or a recommendation for overnight time to commence immediately, particularly in circumstances where the orders of 20 May 2021 provided for a progression of overnight time to commence on 1 December 2021. Dr F annexes to her affidavit [F–04] a Charting Overnight Decisions for Infants and Toddlers (CODIT) profile and no reference was made to that document by either counsel as to whether overnight time is or is not appropriate for a 14-week-old baby. In the context of considering the other comments by Dr F in her report about stability, continuity of care and primary attachment, I do not think that it is appropriate for this child to commence overnight time with the biological mother. That will be an issue to address at a future date, if the mothers are unable to reach agreement independently of the court. I do not intend to make orders for the child to spend overnight time with the biological mother.
The biological mother will no doubt be disappointed and upset about what she perceives is the slow progression of her time with the child. According to Dr F, if the birth mother is to be the primary caregiver, she recommends that the biological mother tries to do less to nourish and comfort the child during contact and to learn to sit back and give him more space. I agree with those comments and would hope that with the assistance of therapy the mothers can address the jealousies in competition about their role in the child’s life and reach a more cooperative parenting relationship.
The task for this Court on an interim basis, when it is not possible to make findings of fact about disputed evidence, is to craft parenting arrangements which are developmentally appropriate for a 14-week-old baby and which are consistent with his current routine, whilst taking into account the desire of both mothers to have a loving relationship with the child and the professional opinions of Dr F.
I consider that the proposal of the birth mother for time to take place each Monday, Wednesday and Friday, in her home each week, meets the needs of the child and will enable him to develop a relationship with his biological mother. However, the two hours suggested should be extended to three hours. I consider the biological mother’s proposal of spending time in the home of the birth mother for five hours twice a week to be excessive and unrealistic. A workable and realistic compromise is three hours.
According to the submissions of Counsel for the birth mother, in response to my questioning, the child’s current routine is that he sleeps during the day from 8.15 am to 9.45 am, 11.45 am to 1.15 pm and 3.30 pm to 4.00 pm, has a bath at 5.30 pm and goes to sleep at 6.30 pm. In order to accommodate the child’s routine and maximise the biological mother’s time with him when he is awake, three hours between 1.15 pm and 4.15 pm would be appropriate for mid-week time. There were no submissions by either counsel as to the other commitments of the biological mother. In the spirit of optimism, I intend to make orders that the biological mother spend time with the child for three hours on each of Monday Wednesday and Friday in the home of the birth mother, at times to be agreed between the parties, and in default of agreement between 1.15 pm and 4.15 pm. That will enable the parties to vary the time to accommodate the child’s routine which may well change in the coming months. Those orders will continue for a minimum period of eight weeks from the date of these orders. If the biological mother has moved to City D at the expiration of eight weeks from the date of these orders, then I consider it appropriate that the three hours on each of Monday and Wednesday continue, but with the time on Friday to take place at the home of the biological mother for three and a half hours, to allow for travel, at times to be agreed, and in default of agreement from 2.00 pm until 5.30 pm. This will enable the child to complete a sleep and travel the half-hour to the home of the biological mother. The return to the birth mother’s home will enable consistency with the child’s evening bathing and bedtime routine. I also intend to make orders in accordance with the proposal of the birth mother that the child spend time with the biological mother each alternate Saturday for four and a half hours from 1.00 pm to 5.30 pm in the home of the biological mother. I accept this time may not necessarily coincide with the child’s sleep routine, but I am satisfied this occurring once a fortnight will not be overly onerous.
I am hopeful that as the child is older and that the mothers have had the benefit of therapy, they may be able to reach further agreement about time, whilst accommodating the child’s sleeping routines. I also intend to make orders for travel when the child is to spend time with the biological mother in her home, for the birth mother to deliver the child to the home of the biological mother at the commencement of time and for the biological mother to return the child to the home of the birth mother at the conclusion of time.
I have discharged all previous parenting orders and have incorporated in these orders, those orders of 20 May 2021, which neither party objected to. It is preferable to have all orders pertaining to the child in one set of orders.
In reaching my decision I have had regard to the relevant legislative pathway and the applicable s 60CC(3) considerations.
As regards the future case management of the dispute, both Counsel agreed that subsequent to the parties obtaining a family report, attending therapy, and possibly mediation, it would be desirable to list the matter for mention in December 2021. I will make an order accordingly.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 18 August 2021
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