Davies and Anor and Schwartz
[2010] FMCAfam 144
•25 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DAVIES & ANOR & SCHWARTZ | [2010] FMCAfam 144 |
| FAMILY LAW – Parenting – contact with mother and maternal grandmother – high conflict. |
| Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA |
| Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4. Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3. |
| First Applicant: | MS J DAVIES |
| Second Applicant: | MS S DAVIES |
| Respondent: | MR SCHWARTZ |
| File Number: | PAM 2871 of 2004 |
| Judgment of: | Altobelli FM |
| Hearing date: | 23 November 2009 |
| Date of Last Submission: | 23 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 25 February 2010 |
REPRESENTATION
| Counsel for the First Applicant: | Mr Ladopoulos |
| Solicitors for the First Applicant: | Lamrocks |
| Solicitor-Advocate for the Second Applicant: | Ms Munk |
| Solicitors for the Second Applicant: | Matthews Folbigg |
| The Respondent: | Self-represented |
| Counsel for the Independent Children’s Lawyer: | Ms Boyle |
| Solicitors for the Independent Children’s Lawyer: | The Legal Aid Commission of NSW |
ORDERS
The Child [X] born [in] 1998 live with the Father.
The Father have sole parental responsibility for the Child.
The Child spend time with the maternal grandmother as follows:
(a)From after school on Friday to before school on Monday on the first weekend of each month save in September when time shall occur on the third weekend in September;
(b)For the first half of each NSW mid-year school holidays period; and
(c)During Christmas school holidays at times as agreed between the Father and the Maternal Grandmother, but failing agreement the second half of the said school holidays.
Should the weekend fall on Father’s Day or Mother’s Day that weekend shall be suspended and occur the weekend immediately following Father’s Day or Mother’s Day.
The Mother may spend time with the Child at any time that the Child spends with the Maternal Grandmother, and such time shall be supervised by the Maternal Grandmother, Maternal Grandfather or the Maternal Aunt Ms L and the Maternal Grandmother shall advise the Father by email three days before the scheduled visit if the Mother is to be present.
The child is to communicate with the Father by telephone between 7.30pm and 8.00pm every Thursday and Sunday that she does not live with him, with the Father to call the Child on her mobile telephone and the Maternal Grandmother and/or Mother to take all reasonable steps to ensure the Child is available to answer the call.
The Child communicate with the Mother by telephone between 5.30pm and 6.00pm every Tuesday and Thursday and on the Child’s birthday, Christmas Day and Easter Sunday, with the Mother to call the Child on the Child’s mobile telephone and the Father to take all reasonable steps to ensure the Child is available to answer the call.
The Child communicate with any of the parties by telephone at any reasonable time that she requests and that the party the child is spending time with at the time of the request shall take all reasonable steps to facilitate the Child’s request.
For the purposes of implementing these orders:
(a)The first half of a mid-year school holiday commences from the first Saturday of a school holiday period at 10.00am and concludes on the second Sunday of a school holiday at 5.00pm; and
(b)The second half of the Christmas school holidays commences from 5.00pm on the Wednesday of the third week of the school holidays until 5.00pm on the last Sunday of the school holidays.
For the purposes of these orders “shall be supervised by” in Order 5 of these orders means that:
(a)One of the supervisors shall be generally present with the Child at all times; and
(b)The supervisor shall ensure the Mother does not take the Child out without supervision; and
(c)The supervisor shall ensure that the Mother does not consume narcotic drugs or alcohol; and
(d)The supervisor shall ensure there is no contact between the Child and Mr M.
The supervisor shall immediately remove the Child from the Mother’s presence and shall notify the Father as soon as possible should the Mother consume alcohol or narcotic drugs or bring the Child into contact with Mr M or behave in a way that causes the Child distress.
The Mother and Maternal Grandmother each be restrained from bringing the Child into contact with Mr M.
The Mother shall not consume any alcohol or narcotic drugs during any time that she spends with the Child.
If overnight weekend or holiday time is spent away from the Maternal Grandmother’s home, the Father shall be advised by email of the address where the Child will be staying, along with either a mobile or landline telephone number.
All weekend time is to be suspended during school holiday time.
The Maternal Grandmother shall deliver the Child to and collect the Child from school, or the [C] Contact Centre on a non-school day.
The Father keep the Mother advised by email to the Maternal Grandmother or to the Mother if she provides him with an email address, of any proposed changes to the Child’s schooling, the names and contact details of her treating health professionals, including doctors, occupational therapists, counsellors, dentists and any other allied health or psychological professionals.
The Father shall authorise all treating medical, psychological, dental or allied health professional for the Child to provide any information requested by the Mother or Maternal Grandmother on the Child’s health, treatment and progress.
The Father shall authorise any school the Child may attend to provide school reports at their expense, school photograph order forms, and information as requested by the Mother or Maternal Grandmother, and the Maternal Grandmother may attend any event at the school that is specifically for grandparents.
Each of the parties keep each other advised of a mobile telephone number for use in emergencies, and an email address if available.
The parties are to keep the other parties advised as to their current address and contact telephone numbers and shall advise each other within 14 days of any change to these details.
The Father shall notify the Mother by email to the Maternal Grandmother of any medical emergency relating to the Child, such notice to include the name of any hospital the Child is admitted to and the name of any treating physician.
The Father shall notify the Maternal Grandmother and Mother as soon as practicable of any medication required by the Child during any contact period.
Without admissions, each party is hereby restrained from:
(a)Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the Child’s hearing; and
(b)Discussing any proceedings between the parents in the presence or hearing of the children or permitting any other person to do so.
The Father comply with any reasonable request by the Independent Children’s Lawyer to meet with the Child to explain the orders.
The Independent Children’s Lawyer is granted leave to provide a copy of any orders made to the Child’s current school.
The Independent Children’s Lawyer is within 21 days to recommend to the Father and Maternal Grandmother a course or program that is designed to help them understand the effect of conflict on young children. The Father and Maternal Grandmother are to then attend such course or program within six (6) months and the Father is to use his best endeavours to ensure that his present wife also attend any such course.
Leave to restore on seven days notice as regarding the interpretation, implementation and enforcement of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Davies & Anor & Schwartz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAM 2871 of 2004
| MS J DAVIES |
First Applicant
| MS S DAVIES |
Second Applicant
And
| MR SCHWARTZ |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about [X] who is 10 years old and about how much time she should spend with her mother, and her maternal grandmother. At the moment [X] lives with her father (who represents himself in this case) and spends time with her grandmother on the first weekend of each month. This is an arrangement that has been in place since 2004 when consent orders were entered into between the parents and the grandmother. [X]’s mother lives in Western Australia. She also spends time with [X], supervised by the maternal grandmother or grandfather, and in Sydney. This happens during school holidays in accordance with orders that were made in 2005, and revised in 2008.
The litigation in relation to [X] commenced at least in 2004 and thus the fact is that for most of [X]’s life her parents have been in dispute about her. Even [X]’s mother acknowledges that there are issues about her capacity to care for [X] because of past and possibly ongoing drug and alcohol issues, as well as concerns about relationships that she has entered into since separation.
One of the real issues in this case is managing the underlying feelings of enmity that exist on the part of the father, towards the mother and maternal grandmother. The level of trust by the father in these people is nonexistent. Communication is highly problematic. I formed the strong impression that the father, and his new wife, feel very strongly that neither the mother, nor the grandmother have anything to offer to [X] and that, ideally, they would have no role to play in her life. Nonetheless, they have adopted a pragmatic approach in relation to contact.
Background
The father, who is now 38 years old, and the mother, who is now 34 years old, entered into a relationship in 1991, married in 1995, and separated on a final basis in July 2000 when [X] was about to turn three. In 2002 the mother moved to Western Australia and left [X] in the care of her father. [X] remains in his care and there is no question whatsoever about the standard of care that he has provided to [X]. There is no criticism in this case of the father’s ability to meet [X]’s physical, education and emotional needs. Clearly [X] is part of a loving family. The only possible criticism of the father and his household would be his entrenched negative feelings towards the mother and the grandmother. Notwithstanding this it is beyond question that [X] should live with him and that all of her needs are being provided for in the father’s household.
There was a period when [X] did not spend time with her mother after the mother moved to Western Australia. The mother entered into a series of relationships with men in Western Australia and has had another child to one of those relationships. She has become involved in proceedings in Western Australia relating to that child.
In the father’s household [X] lives with the father’s wife, Ms S, the three children of the father and of Ms S, and two children from Ms S’s previous marriage. The father works full time and his wife Ms S operates a business from home but is otherwise primarily responsible for the care of the six children living in that home, including [X].
The maternal grandmother lives in Sydney, in a suburb which is about a half hour’s drive from where the father lives. She works full time.
This case first came into my docket in March of 2008 when I made interim orders which varied what was then the current orders dated
13 December 2005. The effect of my orders was that [X]’s time with her mother (which I will refer to as contact in these reasons) was to occur in Sydney and was to be in the home of the maternal grandmother or grandfather who would be present at all times. I further ordered that the mother was not to consume alcohol whilst [X] was in her care, and that her contact was to be forthwith terminated if the mother did consume alcohol, was under the influence of drugs, became violent, or lost her self control. I appointed an Independent Children’s Lawyer on that date.
When the matter came before me on 6 May 2008 I ordered a family report, and set the case down for hearing on 9 February 2009. When the matter came before me in January 2009 I vacated that hearing and made further orders. I suspended all orders for [X] to have contact with both her mother and grandmother and replaced them with further orders regulating contact, these orders designed to cover a very short period of time.
In February 2009 I allocated fresh final hearing dates in November, and made orders for the mother to be psychiatrically assessed by a Part 15 Expert. I further varied the existing orders for contact so that the maternal grandmother would have contact with [X] on the first weekend of each month, for the first half of the mid-year school holidays, and for the mother to have contact with [X] at the same time as the maternal grandmother, should the mother be in Sydney, and subject to supervision.
In September 2009 I made orders by consent appointing a further Part 15 Expert to deal with the mother’s psychiatric condition.
I note that in relation to each of these interim orders there was evidence before me that warranted the making of the orders in question. In the context of these reasons for judgment arising out of the final hearing I sense that there is no need to refer to the events which justified the above orders.
The matter came before me for final hearing in November and the evidence and submissions concluded on 23 November 2009. I made orders in relation to Christmas 2009 contact the effect of which were that [X] would have contact with the maternal grandmother from after school on the last day of school term through to 5 pm on the following Sunday.
The evidence in this case consisted of expert reports provided by Regulation 7 Family Consultant, Megan McMahon, a Part 15 psychiatric report by Dr Westmore a forensic psychiatrist, and a report from
Dr S, the mother’s treating consultant psychiatrist in Perth. The lay evidence consisted of affidavits from the father, his current wife, the mother, the maternal grandmother and quite a substantial volume of subpoenaed documents.
Despite the lengthy history of litigation, and the complexity of this case, by the time the evidence had concluded there were really only four issues:-
a)Whether the grandmother’s contact with [X] would be fortnightly or monthly.
b)What holiday contact would [X] have with her mother and grandmother.
c)Should [X]’s time with the mother be supervised, and if so what does supervision mean?
d)Various discrete but minor issues in relation to contact.
The respective proposals of the mother, father, grandmother, and [X]’s lawyer, the Independent Children’s Lawyer, are summarised in the issues matrix which I set out below. It should be noted that the issues matrix provides only an overview of each party’s proposals in the context of the three main issues I have identified above. The court had, of course, detailed minutes of order from each of the parties which provide flesh on the skeleton that I set out below:-
Issues Matrix
| Proposals/Issues | [X]’s time with Grandmother during school term | [X]’s time with Grandmother during school holidays | Supervision Issues |
| Applicant Mother | Every 2nd weekend from after school Friday to before school Monday | Half of each school holiday | When [X] is with her mother whilst spending time with grandmother, up to 3 hours unsupervised when with mother, otherwise maternal grandmother, maternal grandfather, maternal aunt |
| 1st Respondent Father | Once per month from Friday to Sunday (i.e. mother’s contact separate to grandmother) | · Nil · School holidays is for [X] to have time with the Mother | Maternal aunt to supervise |
| 2nd Respondent Grandmother | One per month Friday to Monday | Half of school holidays | Grandmother to supervise any time between [X] and the mother |
| Independent Children’s Lawyer | Once per month Friday to Monday | Half of school holidays | Grandmother to supervise any time between [X] and the mother |
Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(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
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Significance of Time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
Parental Conflict and Shared Parenting
Some recent Australian research has urged caution about shared parenting arrangements in families where there is a high level of parental conflict. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3 report high levels of anxiety in children for families exhibiting certain characteristics. They conclude as follows:
Neither the general conditions for children’s healthy emotional development nor the specific new findings described above contradict the core principle underpinning the new legislation, namely that most children will benefit from having both parents actively and cooperatively involved in their lives after separation. The data reported here suggest, however, that a group of children are liable to slip through the safety net of considerations designed to ensure that children do in fact benefit from shared parenting. The findings sound a strong cautionary note about applying the new presumptions to cases characterised by ongoing high conflict between parents. We have shown how, in living between and within climates of ongoing dispute and emotional pre-occupation, the mental health ‘benefits’ of substantially shared care accrued by children are questionable.
By implication, then, the ‘safety net’ of considerations through which we filter the ‘best interests’ questions attached to shared physical care needs to be more tightly woven. The task is to sensibly guide ourselves through the socio-legal and often highly emotive contexts that surround the issue, in order for developmentally appropriate decisions can be made in each case.
The research outlined here suggests that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:[2]
Parent factors:
Low levels of maturity and insight;
A parent’s poor capacity for emotional availability to the child;
Ongoing, high levels conflict;
Ongoing significant psychological acrimony between parents;
Child is seen to be at risk in the care of one parent.
Child factors:
Under 10 years of age;
The child is not happy with a shared arrangement;
[2] Whether a factor should be treated as a contra-indication or a caution will be determined by severity, chronicity, and the capacity for change. (endnote from article)
The child experiences a parent to be poorly available to them.
In keeping with the findings of Johnston et al (1989), the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’[3] and the containment of acrimony may prove to be central benchmarks.
[3] Personal communication, Bruce Smyth, October 2007. (endnote from article)
This research is consistent with earlier research undertaken by Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415 at 420:
A small minority of divorcing parents remain in ongoing high conflict. This subgroup constitutes about 10% of all divorcing families (Maccoby & Mnookin, 1992). Ongoing high conflict is identified by multiple criteria, a combination of factors that tend to be, but are not always, associated with each other: intractable legal disputes, ongoing disagreement over day-to-day parenting practices, expressed hostility, verbal abuse, physical threats, and intermittent violence. Research findings to date indicate that high-conflict divorced parents have a relatively poor prognosis for developing cooperative co-parenting arrangements without a great deal of therapeutic and legal intervention. Those parents who met the multiple criteria of high conflict at the time of divorce were likely to remain conflicted over a 2-to 3-year period. At best, they became disengaged and non communicative with one another; they were less likely to become more cooperative over this period of time (Johnston, 1992; Maccoby & Mnookin, 1992).
The studies, as a group, consistently concluded that ongoing and unresolved conflict between divorced parents has detrimental effects on children, especially boys. Children are particularly hurt by witnessing physical violence between their parents (Johnston, 1992). In divorced families where there was ongoing conflict between parents, frequent visitation arrangements and joint custody schedules were likely to result in increased levels of verbal and physical aggression between parents, compared to similar families who had sole custody arrangements, especially at the times of transitions when children moved between their parents’ homes
Of even greater concern was the finding that more frequent transitions and more shared access between high-conflict parents were associated with more emotional and behavioural disturbance among children, especially girls. These children were likely to be more depressed, withdrawn, and aggressive, and to suffer from physical symptoms of stress (such as stomach aches, headaches, etc.); they were also likely to have more problems getting along with their peers, compared to children with fewer transitions and typical sole custody access plans.[4]
[4] Ibid at 420.
Johnston then provides a general principle to guide decision making in high conflict families at 423:
… recognizing that highly conflictual parents (as defined above) have a poor prognosis for becoming cooperative, custody arrangements for this special subpopulation should allow parents to disengage from each other and develop parallel and separate parenting relationships with their children, governed by an explicit legal contract (a parenting plan) that determines the access schedule. A clearly specified, regular visitation plan is crucial, and the need for shared decision making and direct communication should be kept to a minimum.
This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.
The Expert Evidence
It is convenient to deal with the expert evidence before considering the other evidence in the context of the issues raised. In general terms the psychiatric evidence goes to the need for supervision when [X] has contact with her mother. In this regard it should be noted that the father, grandmother and Independent Children’s Lawyer were all consistent in their proposals that [X]’s contact with her mother be constantly supervised. As between the three of them, however, there is an issue as to who is the suitable supervisor. That will be dealt with below. By the end of the hearing the mother’s proposal was that she ought to be allowed up to three hours of contact with [X] unsupervised, but in the context of living at the home of the maternal grandparents, and otherwise being supervised by the maternal grandparents and maternal aunt. It was implicit in the mother’s case that there were issues about her capacity to care for [X] but, in effect, her argument was that the nature and extent of these problems was not such as to preclude her having three hours of unsupervised time with [X].
Dr Westmore, the Part 15 psychiatric expert appointed by the court was in a position to review all of the evidence, including all of the psychiatric evidence from the mother’s treating psychiatrist. Under the heading of Psychiatric Diagnostic Issues Dr W states:-
PSYCHIATRIC DIAGNOSTIC ISSUES
AXIS I Episodic abuse – binge pattern
Cannabis abuse (in remission)
Mood disorder – she has a history of suffering episodes of depression, one pervious self harming attempt has been noted. It is probably that in the past she has experienced episodes of reactive disturbance of mood, best diagnosed as being of an adjustment disorder type. More recently she reports some periods of mood elevation but at this time I believe there is insufficient historical or clinical evidence to support the diagnosis of bipolar affective disorder, either bipolar I or bipolar II disorder.
AXIS IIShe does not have an antisocial personality disorder, I would need extended clinical contact with her to enable me to provide any other definitive opinions in relation to her personality characteristics and structure.
AXIS III no diagnosis
AXIS IV She faces multiple stressors including the separation from both daughters, Family Law Court proceedings occurring both in New South Wales and in Western Australia and having to deal with possibly serious allegations against her new partner.
AXIS VHer general level of functioning probably fluctuates depending on her mental state and what levels of support she might have from time to time. There is however no clear evidence to indicate that she functions in a consistent way in the lower range and probably her general level of functioning is in the average to above average range.
In his concluding opinion he noted that at the time of examination the mother was not showing any overt evidence of suffering a psychiatric condition although she acknowledged being depressed in mood.
Dr Westmore did not believe, however, that she was suffering from a major depression, though was clearly anxious about the litigation. He was of the view that the mother did not have a clear history of suffering from a bipolar affective disorder and no history of ever developing psychotic symptoms. He concluded, therefore, that there were no psychiatric contra indications to the mother having contact with either of her daughters ([X] in Sydney or [Y] in Western Australia). He did acknowledge, however, that the question of supervision obviously depended on a wide range of other factors and circumstances which would be best known to the courts, and, implicitly, not known to himself.
The report of Dr S is significant because of the effort made by him to rebut and counter a diagnosis of the bipolar disorder made by a doctor who had previously been consulted by the mother. He deals with this in quite considerable detail. In his conclusions he refers to the mother’s history of past major depressive disorder, recurrent, with post natal onset and that she had initially presented with major depressive episode. He noted that the mother had engaged in at least one episodic alcohol abuse as well as reporting a history of episodic mood changes. In relation to bipolar disorder he states at page 11 of his report:-
At the stage of having treated Ms Davies I have considered a diagnosis of Bipolar II Disorder (as per DSM IV TR Criteria, Attachment 6) as a significant diagnostic possibility. The recent re-assessment for family court matters has not revealed any further hypomanic departures otherwise. Certainly there is no clinical reason or any other evidence to consider that Ms Davies would have, at any stage, been suffering from Bipolar I disorder and there are no clinical indicators that she would be at risk of developing one. Bipolar I disorder would be the only condition in this scenario that would have significant medico-legal implications.
As far as developing Bipolar II Disorder, this remains a remote theoretical differential diagnostic possibility, as well as a risk of developing the condition in the future, but this would be only of clinical interest, as far as treatment agents are concerned, but not of any medico-legal relevance. Diagnosis of Bipolar II disorder would be clinically relevant in terms of treatment options (mood stabilizer and antidepressant as opposed to antidepressant alone) but would have no implications in terms of her parental responsibilities. Nevertheless, I would recommend management of her illness by a psychiatrist.
In short, Dr S rejects a diagnosis of Bipolar I Disorder, and considers Bipolar II Disorder a remote theoretical differential diagnostic possibility.
In very simple terms the psychiatric evidence indicates that the mother has had past issues with depression and consumption of alcohol, but there is no evidence to indicate current psychiatric problem and certainly no evidence to suggest she suffers from bipolar disorder.
The family report in this case was prepared by Ms McMahon, a social worker with extensive experience in providing reports in parenting matters. She had the benefit of interviews with all of the parties and, by the time she gave evidence, access to all of the evidence. She makes some important observations in relation to the parties, some of which need to be reproduced.
In relation to the father she states:-
13. Mr Schwartz expressed an extremely negative view of both
Ms J Davies and her mother, Ms S Davies. He described
Ms J Davies in extremely derogatory terms and compared her unfavourably to his own wife, whom he described as a “normal Mum”. He told me that he understands that the Child Protection Department in Western Australia has, at times, been concerned about whether Ms J Davies is able to provide adequate care for [Y]. Mr Schwartz advised me, after the initial report interviews, that [Y] had been removed from her mother’s care because of child safety concerns. He said that this is evidence that
Ms J Davies should not be left alone with [X].
14. Mr Schwartz told me that [X]’s mother has been in two violent relationships since she left New South Wales. He acknowledged that he had assaulted her when they were together and expressed regret about this, but appeared to minimise his culpability in the assault, for which he was charged and convicted. He explained to me that he pleaded guilty to the charge of assaulting
Ms J Davies.
15. Mr Schwartz believes that [X]’s grandmother is not concerned for [X]’s wellbeing and indicated that she is caught up in a battle with him and his wife, as she resents the fact that his wife, who was a friend of her daughter’s is a good mother, whereas her own daughter is a “druggie” and a “nutcase”. Mr Schwartz said that he would prefer it if [X] did not have any contact with either her mother or her grandmother but he believes that the Court is unlikely to stop [X] spending time with either of them. He said that he would prefer that if [X] has to spend time with her mother, she do so at a Contact Centre.
16. According to Mr Schwartz, [X] is doing reasonably well at school and has the support of a teacher’s aide in the classroom. He said that [X] likes routine, as she has an autism spectrum disorder and that, as a consequence, she has had difficulty settling back into her home when she has spent time with her mother, her grandmother and on the two occasions that she travelled to Perth. He, however, did not indicate that [X] was any more unsettled when she travelled to Perth, than she is when she spends time with her mother or grandmother in Sydney. He believes that “they do a number on her” when she is with them and said that he believes that a lot of their animosity is directed towards his wife rather than him. Mr Schwartz had difficulty explaining what he meant by the phrase “do a number” as when I asked him to explain it, he merely repeated the phrase.
Mr Schwartz did this on a number of occasions when I asked him to expand on what he had said. He seemed to become irritated and even angry when this occurred.
It will be clear from the reading of the above that the father has very strong views about the issues in this case. I am able to say after considering all the evidence and in particular observing the parties as witnesses that:-
a)the father, and his wife Ms S, have extremely negative views about the mother and grandmother;
b)the relationship between the mother and the father was a volatile one, and it did include the father assaulting her. The mother’s relationships after separation have also been volatile and violent ones;
c)there is absolutely no basis for the father’s contention that the maternal grandmother is not concerned for [X]’s wellbeing. Neither can it be said that the maternal grandmother is “caught up in a battle with him and his wife”. Whilst there is clear conflict between these parties, let there be no doubt that I conclude that it is primarily fuelled by the enmity that the father and his new wife have towards the grandmother, and not the other way round;
d)[X] is progressing well at school despite her autism spectrum disorder.
When the Family Consultant met with the mother she confirmed that she was happy for [X] to live with her father. The mother conceded that, at the very least, her first post separation relationship in Perth was an abusive one. Her second and current relationship to Mr M was described as not an abusive one but “she was frightened that he might become abusive.” The mother informed the Family Consultant that she was on antidepressant medication and that she has had a problem with alcohol and was receiving (at the time of the interview reports in October 2008) drug and alcohol counselling.
The Family Consultant met with the father’s wife, Ms S and noted as follows:-
27. Ms S, Mr Schwartz’s wife, was interviewed in her home as she had refused to attend the interviews when [X], her mother, father and grandmother were interviewed as she had told me that “she would not be in the same building” as [X]’s mother. Mr Schwartz also advised me that his wife did not want to “have anything to do with the family report” and it appeared that a home visit was the only way in which Ms S could be involved in the family report.
28. Ms S expressed a totally negative attitude towards [X]’s mother and grandmother and said that she wishes that “they [[X]’s mother and grandmother] would drop off the face of the earth”. Ms S told me said that she does not think it is necessarily good for children to have a relationship with their birth parents and said that she does “not really want her [[X]] to have a relationship with her mother”. Ms S appeared annoyed when I referred to her as [X]’s stepmother and told me that she is [X]’s mother.
Ms S described Ms S Davies, the maternal grandmother, as “untruthful” and a “cunning individual” and said that “she is out for revenge”. She also told me that she and her husband “do not want [X] to have anything to do with her grandmother”. 31. According to Ms S, the maternal grandmother is not concerned about her daughter spending time with [X] but “is only involved so that she (the grandmother) can have extra time with [X]”. She also said that Ms S Davies wants to increase [X]’s time with her and her daughter to “harm us [her and her husband]. Ms S acknowledged that [X] enjoys the time she spends with her grandmother and mother and said that she thinks that [X] would miss her grandmother if she did not spend time with her. She commented, however, that her grandmother has “set the situation up so that she would miss her”
The Family Consultant of course also met with the maternal grandmother and in relation to her she reports:-
35. Ms S Davies said that the allegations that Mr Schwartz has made and continues to make about her daughter’s drinking and drug use and her behaviour is not true, although she acknowledged that her daughter does have problems, including a very low self esteem, alcohol dependence and a tendency to outburst when stressed or anxious. According to Ms S Davies her daughter’s emotional health has improved over the last few years.
36. Ms S Davies informed me by email in December 2008 that investigations into allegations about her daughter’s partner sexually abusing [Y] and her daughter knowing about this have been finalised and no evidence was found that there was any basis for these allegations. Ms S Davies wrote in the email that she believes that her daughter has handled this crisis extremely well and that her (Ms J Davies) only concern has been for the welfare of [Y].
37. Ms S Davies said that since Orders were made requiring the time that her daughter spends with [X] be supervised, either she or her husband have always supervised their time together. She believes, however, that her daughter should be able to spend unsupervised time with [X] and also that [X] should be allowed to travel to Western Australia to spend time with her mother there.
38. According to her, Mr Schwartz and his wife are continually trying to make it difficult for her (Ms S Davies) to spend time with [X]. She said that she has suggested that she pick [X] up from school to avoid the difficult pick-ups when there is often a lot of tension to which [X] is exposed. She said that Mr Schwartz had rejected this suggestion. She mentioned a number of events when she believes she has tried to co-operate with what Mr Schwartz had requested but she told me that these situations had led to further conflict and in some instances further court action.
It is significant to note that notwithstanding the views about supervision expressed in the above passages of the family report, by the time of the final hearing the grandmother’s position was consistent with that of the father, and the Independent Children’s Lawyer, to the effect that the mother’s contact with [X] ought to be supervised. It would be fair to say, I believe, that the grandmother’s views about supervision was influenced by clear evidence of events which took place at relevant times and of which she was obviously unaware. It is a reasonable inference to draw that the mother had grossly minimised the nature and extent of her problems, to her mother the grandmother.
The father was particularly critical of the grandmother for sending the email referred to at paragraph 36 of the report. I accept that the evidence indicates that the grandmother had absolutely no basis for representing to the Family Consultant what she, in fact, represented in her email. The reality is, based on the evidence before me, that there were concerns about a risk to [Y] of the mother’s partner sexually abusing her, and there remain lingering concerns which will no doubt be the focus of proceeding in the Family Court of Western Australia. The father submits that the grandmother ought not to be approved as a supervisor of the mother’s contact with [X], primarily on the basis of this event. I will deal with this below but it must be recognised, even at this point, that by the time of final submissions the grandmother’s unequivocal position was that [X]’s contact with her mother be supervised by the grandmother.
The Family Consultant also observed [X] and in this regard reports as follows:-
39. [X], aged 9, presented as a healthy looking child who seemed comfortable when she presented for the interviews with her mother and half sister [Y] and her grandmother and grandfather. I observed that she was sitting on her grandmother’s lap when I entered the waiting area, while her mother sat with [Y] beside her. She attends [N] School and indicated that she enjoys school. She spoke positively about spending time with her mother, her half sister and grandmother. She spoke very positively about her family life including her father, her stepmother and her stepsisters, half sisters and half brother.
40. I also spent time with [X] at her father’s home when I interviewed her stepmother. Her stepmother told me that [X] had been looking forward to my visit and she certainly seemed happy to see me. She showed me around her home with pride, including her bedroom. She was observed interacting briefly with her half and step siblings and is obviously very happy and comfortable in the family environment that her father and stepmother provide for her and all the children. [X] was also observed interacting with her stepmother. They interacted in a very comfortable and natural manner and it is clear that she has a very close relationship with her stepmother.
41. [X] told me that her father, stepmother and her grandmother do not “get on well together” and mentioned occasions when they had been angry with each other when she was being picked up. She told me that she would like to spend every second weekend with her grandmother, to talk on the phone to her mother and to “get to see her (her mother) more often”. She told me that when she met Mr M, her mother’s partner in Perth, “he was fun”
42. [X] was observed with both parents separately and when observed with her father she chose to sit on his lap throughout their time together. They seemed very comfortable together, although they did talk a great deal. When [X] was observed briefly and informally in the waiting room where her mother, [Y] and grandmother were she did not to approach her father at all and seemed uncomfortable during the brief period he was in the room with them.
43. [X] seemed at ease with her mother, with whom she had spent the previous week with her grandmother’s supervision. [X] sat on her mother’s lap and they laughed and talked together and
Ms J Davies explained the rules of the game they were playing to [X]. Their interaction seemed very relaxed.
44. [X] was also observed with her mother and grandmother and [X] asked her grandmother a number of times for a cuddle during the observation. [X] seemed a little agitated during this observation and did not seem very relaxed. She was very keen for her sister to join them and her mother brought [Y] into the room. [X] then seemed more relaxed and encouraged [Y] to join in their game.
It is encouraging to know that despite the intense conflict that exists between the father, and the mother and grandmother, and despite a disrupted life, [X] seems to be doing very well. She clearly enjoys a close relationship with her stepmother. She is aware of the conflict, but there is no evidence to indicate she has been affected by it. She clearly also enjoys a close relationship with her grandmother and is at ease with her mother. It should be noted that I am quite critical in these reasons of the father, and his wife, for his enmity towards the mother and grandmother. Be that as it may, both the father and his wife seem to have managed to shield [X] from the strong feelings that they both hold. This is very much to their credit, and it is very important that they continue to do so.
The Family Consultant concluded that [X] clearly was attached to her father, stepmother and grandmother, and appears to view her mother as an important person in her life with whom she enjoys spending time. In terms of attachment, however, the Family Consultant noted that [X] appears to be “developing an attachment to her mother”. The Family Consultant noted that depending on the court’s findings about the serious allegations raised in relation to the mother’s behaviour, an order for supervised time might be in the best interests of [X]. If there was no basis, however, for supervised time then [X]’s contact with her mother would need to be introduced gradually as her attachment was still developing.
In relation to the father’s stated concerns about the suitability of the grandmother as a supervisor the Family Consultant notes at paragraph 47:-
47. Mr Schwartz and his wife, however, have raised concerns about the suitability of Ms S Davies providing proper supervision of the time that [X] spends with her mother and are now requesting that she spend time with her mother at a Contact Centre. Such an arrangement does not seem to be warranted as there are no indications that [X] has come to any harm, or is likely to, when spending time with her mother while supervised by her grandmother or grandfather. In fact, [X] clearly enjoys being with her mother and grandmother and indicated to me that she would like to spend more time with both her mother and her grandmother.
As turns out, based on the totality of the evidence before me, I agree with the Family Consultant that there are no risks to [X] having contact with the mother supervised by the grandmother, and with the grandmother herself. The evidence does not justify the use of a contact centre for the purposes of supervised contact.
On the question of the necessity of contact between [X] and the grandmother the Family Consultant states at paragraph 48:-
It is clear that the relationship between Ms S Davies and
Mr Schwartz and his wife has completely broken down and this seems to have been the case for almost four years. They are both are extremely unsupportive of [X] having a meaningful relationship with either her mother or her grandmother.
Mr Schwartz and, particularly, Ms S are prepared to deprive [X] of a relationship with her grandmother whom she clearly loves and who has been a constant presence in her life since birth and whom Ms S acknowledges that [X] would miss greatly. Ms S’s total lack of support for [X]’s relationship with her mother and grandmother indicates that she has extreme difficulty focusing on [X]’s needs rather than what appears to be her and her husband’s “battle” with [X]’s grandmother and her mother.
As it turns out, based on the totality of the evidence, I agree with the Family Consultant that [X]’s relationship with her grandmother is very important to her, and needs to continue. Indeed, it may be that the only viable conduit for a continued relationship between [X] and her mother, is the grandmother. I note the Family Consultant’s rather trenchant criticism of the father in terms of not supporting an ongoing relationship between [X] and her mother and grandmother. However, the fact is that even on the father’s proposal both the mother and grandmother will have the benefit of contact with [X], and, indeed, the father’s position in some respects is not all that different to that of the grandmother and the Independent Children’s Lawyer. One must not lose sight of the fact that, apart from the enmity that the father and his wife clearly feel towards the mother and grandmother, they have been able to meet [X]’s needs more than satisfactorily. The Family Consultant’s criticism, therefore, needs to be considered in this light.
There is no doubt that the Family Consultant could see the benefit to [X] of an ongoing relationship with her mother and grandmother, but there was an obvious need to minimise and if possible completely avoid any opportunity for physical contact between the father and his wife, and the grandmother and mother. Thus, the Family Consultant recommended that any pickups occur at school on a Friday afternoon, and drop offs at a contact centre. Moreover, changeovers during school holidays should also occur at a contact centre.
The Family Consultant’s recommendations were as follows:-
56. It is recommended that Mr Schwartz have parental responsibility for all [X]’s educational and medical needs and that the parents share equal joint parental responsibility in all other areas.
57. It is recommended that [X] live with her father
58. It is recommended that [X] continue to spend the first weekend of each month with her grandmother, but that this commence at the close of school on Friday afternoon and that she be returned to her father’s care on Sunday afternoon at a Contact Centre at 5.00pm or earlier if the Contact Centre requires this.
59. It is recommended that if the Court determines that [X] is not at risk of harm if she were to spend time with her mother on an unsupervised basis that she spend one week in each mid-year school holiday and for half of the Christmas school holidays with her mother in Sydney, or in Perth if her grandmother accompanies her.
60. It is recommended that if the Court determines that [X]’s time with her mother needs to be supervised then [X] should spend time with her mother as outlined above but with the supervision of her maternal grandmother.
61. It is recommended that all parties, including Ms S and
Ms S Davies attend a program which is designed to help them to understand the effect of conflict on young children
As I’ve indicated above the Family Consultant’s recommendations about unsupervised contact between [X] and her mother, and of the possibility of contact in Perth, were clearly made in the context of the court making findings about safety issues whilst the [X] has contact with the mother. Again, one must note the positions adopted by each of the parties in this litigation in relation to this.
Subject to the matters that I’ve expressly referred to, I accept the evidence of each of the experts. Dr Westmore and Dr S were not required for cross-examination. Ms McMahon was cross-examined, and the significant benefit of this is that matters which were not in her knowledge at the time she wrote the report were put to her so that she could comment on them. Specifically Ms McMahon was given the opportunity to comment on the allegations in relation to [Y], and the emails she had received from the grandmother. When the evidence was put to her she readily conceded that the father’s concerns in relation to [X] in the mother’s care were quite justified. In relation to supervision she thought that, whilst on the one hand two to three hours of unsupervised time with the mother would not cause major concerns in relation to [X]’s safety, on the other hand it would reasonably raise the father’s anxiety about [X]’s time which therefore acted against [X]’s wellbeing. When the objective evidence about the mother’s unstable relationships in Western Australia were put to Ms McMahon, she readily conceded that the mother had minimised to her the nature and extent of the problems that she had experienced. In relation to the frequency of the grandmother’s contact, the Family Consultant pointed out that the problem with fortnightly contact is that it exposes [X] on a much more frequent basis to two completely different households, and in the background of high conflict. The other important point the Family Consultant made was that as [X] becomes older she will become much more busier in terms of her social life, and extracurricular activities. She therefore clearly supported monthly contact with the grandmother, rather than fortnightly. She also agreed that one way in which to manage changeovers was to have a return to school on Monday, rather than on Sunday night at a contact centre. The Family Consultant also conceded that monthly contact was not consistent with [X]’s views to spend more time with her grandmother. However, as she explained it it was a balancing act and that on the facts of this case whilst [X]’s views needed to be taken into account, it was quite possible that [X] did not understand the impact of this on her. She also had no concerns about the grandmother supervising.
I found the concessions made by the Family Consultant in cross-examination to be entirely reasonable, appropriate, and child focused.
[X]’s Contact During the School Term
The case proceeded on the basis that whilst there was the possibility that the mother would travel to Sydney on a weekend coinciding with the grandmother’s contact with [X], it was more likely that the mother’s time would be during school holidays. In the circumstances of this case, I agree that that is the likely scenario. I intend to proceed on the basis that contact during the school term will be primarily with the grandmother, but I do not exclude the possibility of [X] having contact with her mother at the time, subject to issues of supervision I will discuss below.
It was the united position of the father, grandmother, and Independent Children’s Lawyer that [X]’s contact with the grandmother be once each month. It was only the mother who maintained the position that it should be each alternate weekend. The mother’s position is not maintainable in the circumstances of this case where even the grandmother proposes that it be once each month. The court accepts the evidence of Family Consultant McMahon in this regard. Given the background of intense conflict, low communication, high levels of mistrust, and the lengthy litigation history, minimising the frequency of changes from one household to another is in the best interests of [X].
The father’s position is that contact should end on Sunday night, whereas the mother, grandmother and Independent Children’s Lawyer all supported the contact ending with a return to school on Monday morning. Clearly the Family Consultant was open to this, as well. The issue in this regard is not so much minimising physical contact at changeover, because the Sunday night return would be at a contact centre anyway. The father says that [X]’s routine ought not to be interfered with or changed unnecessarily. One can readily understand that in the context of an autistic child. And yet equally important is the need to recognise that [X] told the Family Consultant that she wants to spend more time with her grandmother, and there is clearly evidence of the strength of the bond between them. The evidence presents a picture of a very resilient child and thus I am satisfied that she will cope with a change in the contact arrangements with her grandmother so that she is returned to school on Monday morning. The grandmother has indicated that she will be able to facilitate this, and I have no doubt that this is so. Accordingly, [X]’s time with her grandmother should be for one weekend each month from after school on Friday to before school on Monday, and if Monday is a school holiday then that should be Tuesday morning.
I recognise, and note, that the father’s proposal could well be interpreted to mean that contact during the school term was meant for the grandmother, and not the mother. Whilst the reality may well reflect this, it seems illogical and contrary to [X]’s best interests to preclude contact with the mother should she be in Sydney on a weekend coinciding with grandmother contact. I could discern no cogent reason in the father’s evidence or in his submissions as to why the mother should be denied contact should she be in Sydney during the relevant weekend.
[X]’s Contact During School Holidays
The proposal of the mother, grandmother, and Independent Children’s Lawyer was that [X] should have contact for half of each school holiday period with the mother and grandmother, subject to issues of supervision. The father’s position is less clear. If I have understood the father’s proposal correctly, it seems as if he was suggesting that school holidays is for contact with the mother only, and monthly contact during the school term for the grandmother only. In relation to the mother’s contact during the school holidays his proposal was that for the first 12 months for one week but at a contact centre, with the mother to enrol in a drug and alcohol counselling course. Subject to compliance with the orders after 12 months the mother’s contact with [X] would be four days each school holiday period, at the home of the mother’s sister, Ms L and supervised by her.
There are a number of problems with the father’s proposals. His proposal was framed on the basis that I would not accept the grandmother as a supervisor. For reasons that I will deal with shortly, I do not accept his argument in this regard. The grandmother is a suitable supervisor of the mother’s contact with [X], hence there is no need for a contact centre, and there is no need for Ms L. It is somewhat odd that the father is prepared to countenance the grandmother having contact once per month without supervision, but not have contact during the school holidays. A further problem in the father’s case is that he had not even consulted Ms L about her willingness to act as a supervisor. Moreover, and as I have indicated above, there is no discernible logic, nor any evidence to justify limiting the grandmother’s contact to school term weekends, but not school holidays.
In short, it is hard to discern any rationality in the father’s proposals except as regards the need for supervision of [X]’s time with her mother during school holidays. All of the evidence in this case points clearly to the benefits of [X] having half the school holidays with her grandmother, and her mother if she can be there, subject to issues of supervision to which I now turn.
Supervision of Contact?
It is very significant indeed that even the mother’s own position on the supervision issue is that it should be generally supervised apart from up to three hours when she could be alone with [X] and, presumably, engaged in activities possibly outside of the home. In all other respects the mother agrees with the grandmother, and the Independent Children’s Lawyer, that her time and her contact with [X] should be supervised by either the maternal grandmother, maternal grandfather, or maternal aunt. A reasonable interpretation of the mother’s position is that she concedes the need for supervision except for relatively short periods. The question for the court is whether it is in the best interests of [X] that all of her time be supervised or only all but for three hour periods?
The mother had ample opportunity during the evidence to demonstrate to the court that she was a reliable and capable parent who had recovered from past problems with drug and alcohol abuse, was able to protect [X] from the consequences of past issues as well as to protect her from any harm arising out of the mother’s current relationships. Regrettably, the mother failed to do so. She was an unimpressive witness. I thought that her answers to some of the questions were evasive. She was clearly minimising the extent of her consumption of alcohol and her state of intoxication at events at which she was responsible for the care of her other daughter, [Y]. She totally lacked insight in her answers about how she behaved at certain events, its potential impact on [Y], and how these issues might be relevant in the present context of supervision of her time with [X]. My strong impression is that she sought to project blame onto others around her. She clearly concedes that there were times when she was drinking heavily in the presence of both [Y] and [Y]’s father in Western Australia. She concedes that these events rapidly deteriorated. The police were called at one incident. The police recorded that she was intoxicated, but she would not agree to that in cross-examination. She was unable to articulate how [Y] might experience a situation where her mother was drunk, had become violent, and the police were called. I was left with a very strong impression that she was minimising the nature and extent of her dependence on alcohol and that the court was not being presented with complete evidence about this issue.
In evidence were documents produced on subpoena by the Department of Child Protection, Western Australia, the Western Australian Police Service, the [A] Health Service, Western Australia and a report from [L] Medical in [L], Western Australia. All of this evidence raises issues of deep concern about the mother’s ability to adequately care for [X], and protect her from the mother’s own problems, the precise nature and extent of which have clearly not been disclosed to the court. Whilst the expert evidence indicates that the mother does not suffer from a psychiatric condition as such, evidence of actual events in the past involving the mother’s other daughter, [Y], give rise to serious issues about the mother’s capacity to care for [X], even for a period of as short as three hours. On the facts of this case, there would be an unacceptable risk of harm to [X] if she were to spend unsupervised time with her money for any period, let alone for three hours.
The other issue that arises in the context of supervision of contact is who should be the supervisor. The mother, grandmother, and Independent Children’s Lawyer all say it ought to be the maternal grandmother, maternal grandfather, or maternal aunt. The father insists that it should be only the maternal aunt, though he agrees that he has not consulted with her about this. I accept that there is a significant difference between a position in which the maternal aunt is the sole supervisor, and the position in which she is one of three supervisors.
The father’s rejection of the maternal grandmother and grandfather lacks any objective basis. It is based on distrust and a feeling of enmity which was created based on past events. At one level one can understand the father’s concerns about the grandmother. She minimised before the Family Consultant of the nature and extent of her daughter’s problems. The email to the Family Consultant demonstrated a somewhat naive acceptance of what the mother said to her in relation to the investigation of the sexual abuse allegations involving [Y]. But those events need to be viewed in the context of the grandmother’s position at the hearing which was, unequivocally, all of the mother’s time with [X] should be supervised. Moreover, I think the real issue in this case was identified by the Independent Children’s Lawyers counsel, Ms Boyle, in closing submissions. This submission was that, in effect, the court would have no reservation whatsoever on the evidence about the grandmother’s willingness and capacity to intervene to protect [X] if she were ever at risk, be that risk from her mother or elsewhere. I completely agree with this submission and accept that it is consistent with the evidence.
I am satisfied as to the suitability of the maternal grandmother and grandfather as supervisors. I don’t know much about the maternal aunt but there seems to be consensus between all parties that she would be suitable as at least one of three possible supervisors.
Other Discrete Issues in Relation to Contact
There is no is any real issue in this case that the father ought to have sole parental responsibility in relation to [X].
The father sought an order that the mother enrol in a drug and alcohol counselling course, in the context of his proposal. Given the very limited involvement that the mother will potentially have in [X]’s life, and given that all contact will be supervised, I do not see a point in ordering her to participate in such a course, though it is so obviously to her benefit that it barely needs stating.
The father seeks an order that the grandmother enrol in a drug and alcohol counselling course. There is absolutely no evidence before the court that would justify the making of such an order.
The father agreed during the course of the hearing that a suitable means of communication between the grandmother and himself would be email. Both the grandmother and the father are to do all things necessary to implement the use of email for the purposes of communicating matters relating to [X], between them.
An issue arose about what, precisely, is meant by the requirement to supervise. I am satisfied that the form of order suggested in this regard by the Independent Children’s Lawyer is adequate, ie that the supervisors shall be generally present with the child at all times and ensure that the mother does not take [X] without supervision and that she does not consume alcohol. Moreover the supervisor is to ensure that there is no contact between [X] and Mr M.
Each of the parties propose a slightly different variation of orders relating to one telephone communication and holiday contact. I am satisfied that the orders that I make are a reasonable and child-focused attempt to reconcile the slightly different perspectives adopted by each of the parties. I propose to give leave to the parties to re-list this matter before me as regards interpretation, implementation, or enforcement of these orders.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 25 February 2010
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