Dundas and Blake
[2012] FMCAfam 103
•6 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DUNDAS & BLAKE | [2012] FMCAfam 103 |
| FAMILY LAW – Parenting – child aged 2 years – complex care history – insecure attachments – competing residence applications – expert recommends child live primarily with Mother with no overnights with the Father for at least 18 months to repair child’s attachment to Mother unless finding against Mother of parental neglect – recommendations adopted. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAC |
| Applicant: | MR DUNDAS |
| Respondent: | MS BLAKE |
| File Number: | SYC 5596 of 2010 |
| Judgment of: | Sexton FM |
| Hearing dates: | 6 and 7 October and 11 November 2011 |
| Date of Last Submission: | 11 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Livingstone |
| Solicitors for the Applicant: | Doolan Wagner & Callaghan |
| Counsel for the Respondent: | Mr P. Guterres |
| Solicitors for the Respondent: | Christopher Mackay Lawyer |
ORDERS
All previous parenting Orders be discharged.
Parental responsibility
Subject to Order (3), the Mother have sole parental responsibility for [X], born [in] 2009 on condition that she advise the Father of her intention to make any major decision relating to [X]’s long term welfare and that she consider the Father’s views before making the decision.
The Mother ensure [X] is under the care of one primary general practitioner and the Mother forthwith provide the Father with the general practitioner’s name and contact details, and authorise the practitioner to speak to the Father at any time about [X]’s health.
Live with
[X] live with the Mother.
Time with Father
Until 31 August 2013, [X] spend time with the Father as follows:
(a)From 9.00 am to 5.00 pm each Monday with the Father to collect [X] at the Mother’s place of work at the commencement of such time and return [X] to the Mother’s place of work at the conclusion of that time;
(b)From 9.00 am to 5.00 pm each Wednesday with the Father to collect [X] at the Mother’s place of work at the commencement of such time and return [X] to the Mother’s place of work at the conclusion of that time;
(c)Each alternate Saturday from 10.00a.m. to 5.00 pm when the Mother will deliver [X] to the Father’s residence at the commencement of the time, and collect [X] from the Father’s residence at the conclusion of the time;
(d)In the event [X] shows signs of distress when in the Father’s care, the Father notify the Mother as soon as practicable, and the parties make arrangements for her to be reunited with the Mother as soon as possible.
From 1 September 2013 until [X] starts school:
(a)From 9.00 am to 5.00 pm each Monday with the Father to collect [X] at the Mother’s place of work at the commencement of such time and return [X] to the Mother’s place of work at the conclusion of that time (unless the Mother is not working when the parties will share transport equally between each party’s home);
(b)From 9.00a.m. to 5.00p.m. each Wednesday with the Father to collect [X] at the Mother’s place of work at the commencement of such time and return [X] to the Mother’s place of work at the conclusion of that time (unless the Mother is not working when the parties will share transport equally between each party’s home);
(c)From 5.00 pm each Friday until 5.00 pm each Saturday with the Father to collect [X] at the Mother’s place of work at the commencement of such time and the Mother to collect [X] from the Father’s residence at the conclusion of the time.
From the time [X] starts school until the commencement of her second year of school:
(a)In Week 1, from after school Thursday until 6.30 p.m. Friday (the next day) when the Father will collect [X] from school at the commencement of her time with him and the Mother will collect [X] from the Father’s residence at the conclusion of her time with him;
(b)In Week 2, from after school Friday until the commencement of school Monday when the Father will collect and deliver [X] from her school;
(c)For one half of each NSW short school holiday period as agreed, and failing agreement, being the second half of the school holiday period;
(d)For two periods of 7 days in the Christmas school holiday periods as agreed and failing agreement, for the 7 days from 27 December and the 7 days from 20 January.
From the commencement of Term 1 in [X]’s second year of school (Year 1):
(a)In Week 1, from after school Thursday until 6.30 p.m. Friday (the next day) when the Father will collect [X] from school at the commencement of her time with him and the Mother will collect [X] from the Father’s residence at the conclusion of her time with him.
(b)In Week 2, from after school Friday until the commencement of school Monday when the Father will collect and deliver [X] from her school.
(c)For one half of each NSW short school holiday period as agreed, and failing agreement, being the second half of the school holiday period.
(d)For one half of the Christmas school holiday period, being the first half in years ending in an odd number and the second half in years ending in an even number.
[X] spend time with the Father on Father’s Day from 10.00 am to 5.00 pm if Father’s Day is not a contact day when the Mother will deliver [X] to the Father’s residence and the Father will return [X] to the Mother’s residence at the conclusion of the time.
If Mother’s Day falls on a day on which the Father is to spend time with [X], [X]’s time with the Father will be suspended at 10.00am on Mother’s Day when the Mother will collect [X] from the Father’s residence.
[X] spend Christmas Day with the Mother each odd numbered year, and Christmas Day with the Father in each even numbered year when the parties share the transport equally and arrange changeover times by agreement between them.
If [X]’s birthday falls on a non-school day, [X] spend three hours with the Father on her birthday, in the vicinity of the Mother’s residence.
If [X]’s birthday falls on a non-school day and otherwise falls on a day during which [X] is to spend time with the Father, the Father’s time is suspended for three hours on that day during which [X] shall be with the Mother in the vicinity of the Father’s residence.
Changeover
If not otherwise provided in these orders, and not otherwise agreed between the parties, the Mother transport [X] to the Father’s residence at the commencement of [X]’s time with him, and the Father return [X] to the Mother’s residence at the conclusion of [X]’s time with him.
Support for the Mother
The Mother consult a psychologist fortnightly for a minimum of 2 years, and thereafter continue to attend upon the psychologist at a frequency recommended by the psychologist.
The Mother provide her psychologist with a copy of these Orders and Reasons for Judgment and a copy of Mr L’s report.
Personal care of [X]
The Father personally care for [X] during the periods he is to spend time with [X] as set out in these orders, unless an emergency, for at least the next three years.
In the event the Father is unable to personally care for [X] during times she is due to be with him, the Father advise the Mother by way of email and SMS, no less than 48 hours before the time is due to commence, and [X] remain in the care of the Mother.
Information sharing
Each parent keep the other parent informed as soon as is reasonably practicable of any:
(a)Serious medical problems or illnesses suffered by [X];
(b)Medication that has been prescribed for [X] that needs to be taken while [X] is in the care of the other parent; and
(c)Other significant matters relevant to the welfare of [X].
The Mother shall keep the Father informed at all times of the name and contact details of [X]’s health practitioners including any specialist medical practitioner she consults with [X], and the Mother shall provide those medical practitioners with a written authority to release information to the Father about [X]’s attendance and/or medical treatment and/or medical advice as the Father may request from that practitioner.
Restraints
The Mother be restrained from consuming any alcohol during [X]’s time with her or from consuming alcohol in the 12 hours prior to [X] being in her care.
Each party be restrained from denigrating the other parent in [X]’s presence or within her hearing, and use that party’s best endeavours to ensure that no other person denigrates the other party in [X]’s presence or within her hearing.
Until [X] is 16 years of age, the Applicant and the Respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the Child [X] born [in] 2009 (female) from the Commonwealth of Australia.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either party from removing or attempting to remove the said Child from the Commonwealth of Australia.
Until [X] is 16 years of age, the Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship take all necessary steps to immediately place the said Child’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said Child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Dundas & Blake is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5596 of 2010
| MR DUNDAS |
Applicant
And
| MS BLAKE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a complex case about the parties’ only child [X], born [in] 2009, now aged 2 years 10 months. The parties lived together in [suburb A] for 2 years. After separation in mid-2010 when [X] was 15 months of age, the parties implemented an approximately equal time care arrangement, although [X] also experienced extended periods of separation from the Mother and was regularly cared for by 3rd parties.
After separation, the parties lived under the one roof for a few weeks before the Father left the [suburb A] [property]. The Mother remained living in the [property] until early November 2010 when the Father returned to live there. When she left [suburb A], the Mother moved to rental accommodation on the Central Coast of NSW.
Final orders were made by consent in October 2010 in relation to property and parenting issues when [X] was 19 months of age, providing for [X] to spend 3 nights each week with the Mother, and 4 nights each week with the Father. The parties have substantially complied with those orders.
Mr L, the Court appointed expert, recommends that [X]’s arrangements be significantly changed as soon as possible. Mr L says that [X] is exhibiting behaviours that are consistent with attachment insecurity. These include “prolonged distress on handover from one parent to the other parent; clinginess thereafter; distress on separation when commencing child care; nightmares…and aggressive attention-seeking behaviours.”[1]
[1] At paragraph 25 of Exhibit 1
Mr L has 32 years experience in the application of attachment theory.[2] In the early 1990’s, he undertook training given by the United States attachment expert, Dr M, which included training in the “strange situation test”, the foundation test of attachment theory. Mr L is one of only 2 or 3 therapists in Australia who have undertaken this level of training. Mr L has been required by the Court for many years to train others, including family consultants and other experts in the use of attachment theory in the court context. In relation to the present case, Mr L says:[3]
This is one of the most complex attachment histories that I have dealt with…there are many processes and events that, if true, would be inconsistent with the smooth development of secure attachment relationships….
[2] At page 6 of the 6 October 2011 transcript of proceedings
[3] At page 9 of the 6 October 2011 transcript of proceedings
Background
The parties commenced cohabitation in Sydney in mid-2008 and separated in June/July 2010. [X] was born [in] 2009. The parties lived in a [property] at [suburb A] during cohabitation.
The Father is 56 years of age and works as a [occupation omitted]. He remains living in the [suburb A] [property] in which the parties cohabited.
The Mother is 34 years of age. She has a degree in [omitted], for which she received an academic award. She is a [occupation omitted] at [company omitted]. She lives in [a property] on the beach at [suburb B] on the Central Coast of New South Wales, about an hour and half’s drive from the Father’s residence at [suburb A].
History of [X]’s care arrangements since birth
The parties agree that the Mother breast fed [X] for her first 6 to 8 months but each claims to have been [X]’s primary carer thereafter until final orders were made in October 2010. The Father says that the Mother struggled with parenting which meant that he had to look after [X] much of the time, and perform the majority of domestic tasks associated with [X]’s care. The Mother says that the Father played only a minor role, spending the majority of his time at work in Sydney or interstate.
It is common ground that when [X] was 10 weeks of age, in May 2009, the Mother left her in the full time care of the Father for 5 nights to travel to her family home in Brisbane. She brought her younger sister Ms W back to Sydney to live with the parties for 6 months, to enable Ms W to receive treatment for a [omitted] disorder. The Mother says the Father recognised the need for Ms W to temporarily live with them. She disputes the Father’s claim that the Mother gave Ms W a lot of attention, to the detriment of [X]. Though the Father says that he played the majority care-giving role during this period, he was working full time during this period and the Mother was at home full time while breastfeeding [X].
The parties agree that in November 2009, when [X] was 8 months of age, the Mother commenced full time employment at [company omitted] at [location omitted], close to the Sydney CBD. She was employed from 8.30a.m. to 5.00p.m Monday to Friday. The Father or his sister Ms H (who lives at [location omitted]) looked after [X] until January 2010, when [X] commenced day care. During this two month period, at the end of December 2009, when [X] was 9 months of age, the Father took [X] to Europe for almost 3 weeks, without the Mother, travelling with her to [locations omitted].
In January 2010, [X] commenced day care at [omitted] Day Care Centre from Tuesday to Thursday each week in [address omitted], Sydney, when she travelled with the Mother to and from the Centre by ferry. The Mother left home with [X] at approximately 7.15a.m and returned home with her between 6.30 and 7.00p.m. The Father or his sister Ms H looked after [X] on Mondays and Fridays.
On 6 February 2010, the Father went to Melbourne for a few days leaving [X] in the Mother’s care.
In May 2010, [X] moved to another [omitted] Day Care Centre at [address omitted], closer to the Mother’s place of work, and continued to attend from Tuesday to Thursday each week as before. In June 2010, [X] stopped day care on Tuesdays, but continued to attend on Wednesdays and Thursdays. On Tuesdays, the Father, his sister Ms H, or another carer, looked after [X].
The parties give different versions of the care arrangements after the Mother started working. The Father says that the Mother usually arrived home after [X]’s evening meal and sometimes woke her to play, but otherwise he was responsible for [X]’s full time care, including preparing almost all her meals, bathing her most days, dressing her and entertaining her. On the other hand, the Mother claims to have taken the majority responsibility for [X]’s care when in the home. It is common ground that the Mother took [X] on the ferry with her to and from day care, at first 3 and then 2 days a week.
The parties separated under the one roof in June/July 2010. On 31 August 2010, the Father removed [X] from the Mother’s care and she did not see the Mother for 6 days. On 7 September 2010 the Court made interim orders providing for [X] to live with the Mother 4 nights a week and with the Father for the balance of the week. Despite these orders, on 10 September 2010, the Father kept [X] from the Mother for another 23 days, alleging the Mother was neglecting [X]’s care. After the 23 day separation, for a further period of a week, [X]’s time with the Mother occurred under the supervision of the Father and for very limited periods. It is not in dispute that [X] spent a total of 11 hours with the Mother between 10 September 2010 and 11 October 2010.
Since orders were made on 11 October 2010, [X] has lived with the Mother in a two weekly cycle for 3 nights in Week 1, for 3 nights in Week 2, and otherwise, with the Father. When in the Mother’s care on a week day, [X] attends [omitted] Childcare Centre in [address omitted], Sydney and travels to and from [suburb B] with the Mother by train. On weekends, [X] travels with the Mother by car for changeover. The Father does not always care for [X] personally during time allocated to him because of his work commitments, including his need to travel interstate from time to time overnight on weekdays and weekends. Sometimes he leaves [X] with his sister Ms H or with one of her two young adult daughters. [X] has lived with the Father at his sister’s home for 9 weeks in the last 18 months to accommodate his work commitments. The Father anticipates that his work schedule for 2012 will involve him spending time away from Sydney in February, on 10 Sundays from late May, a further full week during the year and additional overnight absences of 2-3 days.[4] The Mother plans to keep [X] in day care on Thursdays and Fridays when she is working.
[4] Affidavit of the Father sworn 22 September 2011
History of litigation
On 31 August 2010, the Mother filed an application for parenting orders in [suburb A] Local Court. The Father commenced proceedings in this Court by application filed on 3 September 2010 and the matter proceeded in this Court on the Father’s application. The Father sought Orders on an interim basis providing for [X] to travel overseas with him in September 2010. That Application was given short notice, and first came before the Court on 7 September 2010. The parties attended a child dispute conference with Ms K who noted that the parties had reached an interim agreement in relation to [X]’s parenting arrangements, and that the Father no longer sought to travel overseas with [X] during September 2010. The Court made interim Orders largely in accordance with the parties’ agreement, which provided for [X] to live with the Mother each week from Tuesday evening until Friday morning, and then from Friday evening until Saturday evening. At all other times [X] was to live with the Father.
On 15 September 2010, the Father filed an Application in a Case seeking that the Orders made on 7 September 2010 be discharged and on an interim basis, [X] live with the Father and spend three periods of supervised time with the Mother each week. The Registrar refused short notice of the Application, and the Father’s Application for Review of the Registrar’s decision was dismissed in Chambers. On 15 September 2010, the Court noted that the Father had withheld contact between [X] and the Mother.
On 20 September 2010, the Mother filed an Application in a Case seeking the recovery of [X] and a continuation of the Orders made on 7 September 2010. The Registrar refused short notice of the Application, and the Mother’s Application for Review of the Registrar’s decision was dismissed in Chambers. The Father was directed to deliver [X] to the Court on the return date of 11 October 2010 and was restrained from taking any action to remove or exclude the Mother from the [suburb A] property.
On 11 October 2010, the Court made Final Orders by consent which provided for the parties to have equal shared parental responsibility for [X], and for [X] to live with the Mother in a fortnightly cycle from after work Wednesday until 5.00p.m. Saturday in Week 1, and from 5.00p.m. Thursday until 5.00p.m. Sunday in Week 2. At all other times, [X] was to live with the Father. Implementation of the Orders was dependent upon the Mother providing a letter from Ms C, her psychologist, confirming that she had the capacity to care for [X] in accordance with the orders. The Orders provided for either party to take [X] overseas for up to three weeks upon the giving of notice to the other. The Mother undertook not to consume alcohol while [X] was in her care or for twelve hours prior to [X] coming into her care.
The present proceedings commenced on 26 November 2010 when the Father filed another application, seeking orders to remove [X] from the watchlist, and to permit her to travel overseas with him in December 2010. The matter came before me for the first time on 2 December 2010 when I referred the parties to a child dispute conference. On 7 December 2010, Family Consultant [name omitted] stated that “both parents agree that the current shared care arrangement is not in [X]’s best interests. They both agree she is showing clear signs of distress and should live predominantly with one parent and spend time with the other.” When the matter came back before the Court on 9 December 2010, I adjourned the proceedings to 17 December 2010 and noted that the Father anticipated withdrawing his application to travel with [X] overseas.
On 17 December 2010, I made further Orders requiring each party’s solicitor to prepare a joint chronology of [X]’s care arrangements from birth to date. I directed the parties to attend a child inclusive conference with Mr L to assess the nature of [X]’s attachment relationship with each parent given her young age and her complex care arrangements since birth. I made an order for the parties to attend a post-separation parenting assessment with an external agency in an attempt to reduce the acrimony between them.
Mr L saw the parties and [X] on 27 January 2011, and made a further appointment on 28 February 2011 given the “complex attachment/parenting history.” I made interim Orders restraining each party from consuming alcohol when [X] is in that party’s care or the 12 hours prior to [X] coming into that party’s care. I also directed each party to keep a diary setting out observations of [X] at changeover and over the 48 hours subsequent to changeover, and provide a copy of that diary to Mr L at the further child dispute conference in February.
Following the conference on 28 February 2011, Mr L recommended the preparation of a family report, and advised the parties that in the event either party noticed significant distress in [X] at changeover, or when [X] is in either party’s care, that party could attend a further consultation with him by arrangement with the child dispute section of the Court. The matter was otherwise listed for final hearing in October 2011 before me and a family report was ordered. The October 2010 orders were varied such that if [X] could not be cared for by the parent with whom she was due to stay overnight, then the other parent must be notified so that [X] could remain overnight with that parent.
The matter was heard before me on a final basis on 6 and 7 October 2011, and 11 November 2011.
Current Orders
As already noted, [X] lives with each party in accordance with the final consent orders made on 11 October 2010 as varied by orders made on 28 February 2011. The arrangements provide for a 2 week cycle:
a)In Week 1 she lives with the Father from 5.00p.m. Sunday to 5.00p.m. Wednesday and with the Mother from the conclusion of the Mother’s working day on Wednesday until 5.00p.m. on Saturday.
b)In Week 2, [X] lives with the Father from 5.00p.m. Saturday until Thursday morning (when he delivers her to day care) and with the Mother from the conclusion of the Mother’s working day on Thursday until 5.00p.m. Sunday.
The orders provide for [X] to be taken overseas by either party upon the giving of notice to the other party.
Orders sought by Father
At the commencement of the hearing, the Father sought orders providing for the parties to have equal shared parental responsibility, for [X] to live with him, and to spend time with the Mother from Thursday to Saturday each week and half school holidays from the time [X] starts school, until at least 20 June 2015. Thereafter the Father sought an order that he be permitted to relocate with [X] within the Sydney Metropolitan area when [X] would spend alternate school holidays and half Christmas holidays with the Mother. The Father sought an order for [X] to hold her own passport from the age of 6 years.
In light of the expert’s recommendation that [X] spend every night in the home of one parent for a period of 18 months, the Court asked the Father to prepare a Minute of Order as to his proposal for [X]’s time with him if [X] were to spend every night for 18 months with the Mother, and his proposal for [X]’s time with the Mother, if [X] were to spend every night for 18 months with him. The Father proposes[5] that if [X] spends every night with the Mother for the next 18 months, [X] spend time with him each Monday from 8.00a.m. until 6.00p.m., each Tuesday from 8.00a.m. until 6.00p.m., each Wednesday from 8.00a.m. until 6.00p.m, each Thursday from 8.30a.m. until 5.30p.m. when [X] may spend some Thursdays with the paternal aunt, and on each alternate Saturday from 9.00a.m. to 6.00p.m. The Father proposes the Mother undertake all transport to and from the Father’s residence in [suburb A] from Monday to Thursday each week, and the parties share the transport to and from each other’s home on alternate Saturdays.
[5] Exhibit 15
In the event [X] lives with him every night for 18 months, the Father seeks orders providing for [X] to spend time with the Mother every Wednesday from 6.00p.m. to 7.30p.m. when the Mother will collect and deliver [X] from the Father’s [suburb A] residence; every Friday from 8.30a.m. to 6.00p.m. with the parties to share transport to and from each other’s home; on each alternate Saturday and every Sunday from 8.30a.m. to 6.00p.m. with the parties to share the transport to and from each other’s home.
Orders sought by Mother
In her Response, the Mother sought an order for a week about care arrangement but Mr L reports that at interview, the Mother expressed concerns about this arrangement as “she believes [X] misses her”. At hearing, the Mother seeks orders providing for her to have sole parental responsibility, for [X] to live with her and to spend two days a week (daytime only) with the Father and a Saturday on the alternate week, until [X] is 4 years of age. Thereafter she seeks orders providing for [X] to spend one overnight each week with the Father and two days When [X] starts school, the Mother seeks orders providing for her to spend alternate weekends with the Father from Friday afternoon until Monday morning, and for one overnight in the alternate week, as well as half school holidays.
Attachment issues and recommendations of the expert
Mr L describes [X]’s attachment history as “fragmented and inconsistent.”[6] He says in particular:
a)When [X] stopped breast-feeding and the Mother returned to work when she was 8 months of age, [X] spent 3 months in the care of the Father and his sister during the day. He says, “Since then, and up until the present time, her attachment security has been challenged, on a weekly basis, by frequent stressful and anxiety inducing separations from one or other of her parents, and probably, by being cared for my multiple caregivers.” [7]
b)Until 15 months of age, [X] would have been experiencing the tension between the parties which would have “detracted from their capacity to focus on [X]’s attachment needs in a relaxed and consistent manner.”[8] At times the parties reported yelling in front of [X].
c)The Mother had bouts of depression which may have meant [X] experienced rejection.[9]
d)[X] experienced several extended periods of separation from the Mother during her first 2 years which “would have challenged her basic trust in the predictability and availability of attachment figures and at worse would have been traumatising for her.”[10]
e)[X] experienced “endless separations and reunions” which would have been extremely stressful for her, because it is at the point of separation from an attachment figure that her stress levels will be at their highest.[11]
[6] At paragraph 28 of Exhibit 1
[7] At paragraph 29 of Exhibit 1
[8] At paragraph 30 of Exhibit 1
[9] Ibid
[10] At paragraph 31 of Exhibit 1
[11] At page 17 of 6 October 2011 transcript of proceedings
Based on each party’s accounts, Mr L says [X] has intermittently:
…exhibited behaviours that are consistent with attachment insecurity” (i.e. when a child has exceptional difficulty with separations from attachment figures because such separations are experienced as mental echoes of prior, untimely, frequent and/or traumatic separations that have disturbed the child’s confidence in the predictability and availability of parents and parent figures.)[12]
[12] At paragraph 25 of Exhibit 1
For [X], these behaviours include “prolonged distress on handover from one parent to the other, clinginess thereafter, distress on separation when commencing child care, nightmares (including… she cries out “Mummy”) and aggressive attention-seeking behaviours.” [13] Mr L, however, notes that [X] can function happily and confidently for prolonged periods in either party’s care and at the child care centre. The director of the centre reported to him “that [X], for the most part, functions quite normally at the centre.”[14]
[13] At paragraph 25 of Exhibit 1
[14] At paragraph 27 of Exhibit 1
Mr L describes “attachment” as a “two-way process” between the child and the attachment figure. It is “a process that continues irrespective of the behaviour of the parent.” On the attachment hierarchy, [X]’s primary attachment figure is the Mother because for the first 6 to 8 months of her life, the Mother was the primary attachment figure. Mr L explains that it is during this period that the most profound attachment processes are developing. It is of significant concern to him that just as [X] was developing a clear cut attachment to the Mother, it was truncated, when at 8 to 10 months, [X] was separated from the Mother and subsequently she experienced prolonged absences from the Mother when the Father took her to Europe for nearly 3 weeks at 9 months, when the Father took her to Melbourne at 17 months of age and left her in the care of a 3rd party, when the Father kept [X] away from the Mother for 30 days in the August/September/October 2010 and when the Father left [X] in the care of others on a number of evenings. Mr L says that those kinds of separations for children at that age, however they come about, totally contradict a child’s need for security and predictability and familiarity at that age. He says that even 2 or 3 days away from somebody with whom you have a primary attachment “can be devastating and demonstrably so.” [15]
[15] At page 54 of 6 October 2011 transcript of proceedings
Mr L finds it unsurprising that [X] is “leaning out for love” from the Mother.[16] In his opinion, [X] will now express insecurity with any attachment figure, as she has been doing, because she has lost trust, an internal phenomenon, in whoever is around. At observations, Mr L saw [X]’s distress on separation from the Mother, not on separation from the Father[17], because, he explains, her anxiety is more aroused on separation from the Mother.
[16] Ibid at page 53
[17] Ibid at page 60
Mr L is confident that “at this time, she is seeking her mother through her attachment search behaviours”[18] and is finding separations from the Mother particularly stressful. He says “this little girl is indicating to us that what she wants in life is a certainty that her mother is there and will be there”[19] and “She is yearning for her mother to be a predictable presence in her life.”[20] He says that as soon as possible, if the Mother is not consuming alcohol to excess while [X] is with her, and the Mother is not neglecting [X], [X] needs:
a)To live with the Mother who must be predictable and available to her with as few other carers as possible and no overnight time away from her for at least 18 months. She needs to go home to the same house and the Mother at night. The next 18 months is the critical period.[21] After that, there could be a limited cautious introduction to overnight time with the Father.
b)The chance to commence a process of emotional repair, by her Mother being a constant and responsive presence in her life. She needs to know that her Mother is there for her regularly and predictably at a certain time.[22]
c)To see the Father regularly during daytime only for the next 18 months, but if she shows signs of distress with him, she should be immediately returned to the Mother.
d)Her parents living in close proximity to each other to make this work.[23]
e)One doctor to look after her health needs.
[18] Ibid at page 17
[19] Ibid at pages 36 to 37
[20] Ibid at page 47
[21] Ibid at page 35
[22] Ibid at page 18
[23] Ibid at page 18
In cross-examination by the Father’s counsel, Mr L says that the fact that [X]’s time with the Mother involves day care, whereas her time with the Father does not, does not affect his strongly held view that [X]’s overriding need is for attachment repair with the Mother. He says that [X] can maintain her attachment relationship with the Father by spending regular daytime with him. He says[24] that children maintain and develop attachment relationships as much as in the daytime as in the night-time.
[24] Ibid at page 18
Mr L says that if his recommendation is not successfully implemented, [X] will be insecure in terms of her trust in people being continuously available to her. He says “That will translate from her early childhood into subsequent years, into anxiety about relationships, anxiety about parents, which will become part of her chronic state…”[25] He is critical of the parties’ decisions not to live closer to one another to give [X] the best chance of attachment repair. He would like to see her time in day-care reduced as much as possible. However, within the logistics of these parties’ lives, Mr L says the more predictable her day to day life, the more predictable her carers, both daytime and night-time, the better for [X].[26] Therefore the party who drops her at day-care must pick her up from day-care. Mr L says that restoring the healthy psychology of this child depends on maximising the opportunities for her relationship with the Mother to be repaired.[27]
[25] Ibid at page 37
[26] Ibid at page 38
[27] Ibid at page 41
Mr L highlights the concern in this case as the “quality” of [X]’s attachments to the Mother and to the Father. He says that if the Mother were depressed and drinking when [X] was in her care, the quality of [X]’s attachment to the Mother would have been adversely affected because [X] is likely to have experienced the Mother’s emotional state as rejection. If the Mother continues to be depressed and drinking to excess she is likely to be neglecting [X]’s fundamental needs, so [X] would have to live with the Father, have no overnight time with the Mother for at least 18 months, but spend time during the day with the Mother as often as possible, preferably every day, with access to the Father if she showed signs of distress.[28] He says this arrangement however, will not stop [X] “pining for the Mother”. The question for determination is therefore whether the Mother is a neglectful parent.
[28] Ibid at page 35
I accept Mr L’s observations and opinions.
Mother’s health
The Father’s counsel submits[29] that the Mother “has an ongoing and very serious problem with alcohol”. He bases his submission on the fact that she has been admitted to hospital in the past to detoxify from alcohol, has not completely stopped drinking, and failed to fully disclose her past alcohol use in her affidavit, or at interview with Mr L. Counsel submits that the Court should therefore find that [X] is at risk in her Mother’s care.
[29] Exhibit 21
According to the Father, the Mother was ambivalent about the pregnancy and raised the option of having the baby adopted. He says that the Mother was depressed and withdrawn after [X]’s birth and again, months later, discussed with him whether [X] would be better off if they gave her up for adoption. The Father claims that at the end of 2009 the Mother said to him, “since you refused to give up [X] for adoption when she was born, [X] is your responsibility”. [30] In a letter dated 8 June 2010 to the Mother’s psychologist, Ms C[31], Dr T, general practitioner, states that the Mother is struggling with her parenting role and has suggested to the Father that they should adopt [X] out.
[30] Affidavit of Father sworn 22 September 2011
[31] Exhibit 7
The Mother does not deny that she raised the issue of adoption with the Father, but told Mr L she never had any serious intention of having [X] adopted. The Mother says she was pregnant to someone who did not love her and whom she did not love. Her family was away and she had no job. She felt very isolated. However, in early 2009 she told her psychologist that she was looking forward to the birth of the baby.[32]
[32] Exhibit 8
In 2010, when the issue of adoption was raised in a conversation with the Father again, the Mother says she was on anti-depressant medication[33] and miserable in the relationship. Mr L says that in his experience, in the context of high conflict, people make statements they do not seriously intend to carry through.[34] He interprets the Mother’s remarks as the Mother saying she cannot manage this situation with the baby any more. He is not surprised this is how the Mother expressed her feelings in the circumstances in which she found herself.[35]
[33] Exhibit 7
[34] At page 10 of 6 October 2011 transcript of proceedings
[35] Ibid at page 13
The Father says the Mother drank alcohol to excess during their relationship and he observed her on a number of occasions to be so affected by alcohol that she could not respond to [X]’s cries. He highlights her history of admissions to hospital before 2005 for alcohol detoxification. He says the Mother has an addiction to alcohol, evidenced by her decision to attend a Mother’s group at the [suburb A] Hotel, her close friendship with his sister Ms Q who he says drinks to excess, her decision to drink to excess at a party on Boxing Day 2010 and her decision to continue drinking socially. He relies on a photograph of the Mother drinking at a party in December 2009.[36] The Father believes that the Mother is an alcoholic, should abstain from alcohol use and should attend Alcoholics Anonymous.
[36] Exhibit 4
The Father claims that on occasions during 2009 and 2010, the Mother engaged in “binge drinking”.[37] I find his affidavit evidence unclear as to what he actually saw the Mother consume, and what he assumed she had consumed after inspecting the parties’ alcohol cabinet. In particular the Father alleges:
a)On 5 December 2009, when [X] was 9 months old, the Mother slept for much of the weekend after being out with work associates, and he was required to take care of [X] over the weekend.
b)On the weekend of 23-25 July 2010, he says that over a period of 3 days, the Mother consumed a bottle of gin, a bottle of chilli vodka, kahlua, vermouth, a 6-pack of pre-mixed bundy and coke cans, two bottles of red wine, a bottle of champagne and the remains of a bottle of tequila. It appears that he came to this conclusion after opening the parties’ alcohol cabinet at the end of the weekend. He also says that [X] woke in the night screaming loudly and the Mother “could not be woken” but it is not clear whether this experience occurred on that same weekend.
c)“In the middle to latter half of 2010”, the Mother drank to excess “at least 2-3 nights a week”. She would have at least 10-16 drinks consisting of wine, spirits, beer and liquor. During this period she consumed most of the alcohol in the parties’ alcohol collection which consisted of approximately 6 bottles of schnapps, 4 bottles of whisky, a bottle of Johnny Walker red, and another of Johnny Walker black, two large bottles gin, bottle vermouth, 3 bottles of rum, two bottles of brandy, a bottle of kahlua, 8 bottles port, 5 bottles vodka, bottle of tequila, rum and sherry.
d)In or around 16 August 2010, the Mother was “incoherent and unstable” as a result of excessive alcohol consumption and was incapable of responding to [X]’s cries.
[37] At paragraph 44 of Father’s affidavit sworn 22 September 2011
In cross-examination, the Mother acknowledged being admitted to hospital 3 times for depression before 2005 because she was addressing her depression by using alcohol to excess. She says “I had been drinking each day for 6 years” and “certainly drank to excess in that period”. While Mother acknowledges having a problem with alcohol prior to 2005, she denies ever being an alcoholic. The Mother says she was never advised to abstain from alcohol completely, but was advised to address her depression. She did not regard her prior hospital admissions as relevant to include in her trial affidavit or to outline to Mr L in any detail.
Prior to the commencement of proceedings in September 2010, the Mother acknowledges drinking alcohol to excess again at times, but not to anything like the extent alleged by the Father. She says she was “miserable and depressed” while living with the Father and decided to consult a psychologist. In July 2010, the Mother told her counsellor she needed therapy for her binge drinking behaviour as “I was concerned it was going to be a problem”. She says she last drank “more than I should have” on Boxing Day 2010 at the home of the Father’s sister Ms Q, when [X] was in the Father’s care.
The Mother denies her drinking has ever affected her capacity to parent and denies ever drinking when [X] has been in her sole care. She says she has at all times complied with orders made on 11 October 2010 providing for no consumption of alcohol when [X] is in her care or for 12 hours prior to her coming into her care. She has sought professional help in the past and continues to consult a psychologist. She says she has no difficulty controlling her alcohol intake now, and has never compromised [X]’s safety by drinking to excess while caring for her. The Mother agrees to continue to comply with a restraint on alcohol consumption into the future, which she understands would mean abstaining from alcohol use altogether if [X] were in her care each day. She will continue to consult her psychologist.
Ms B, Head of [department omitted] at [company omitted], where the Mother has been employed since late 2009, says[38] that the Mother is a reliable and professional employee who has never shown any sign of excessive alcohol consumption, either by drinking to excess at a work social function, by taking days off work, or by arriving late. On the contrary she has nothing but praise for the Mother’s presentation and performance in the work place.
[38] Affidavit of Ms B sworn 8 October 2010
The Mother says the Father has also alleged that his sister Ms Q is an alcoholic. In her view it is hypocritical of the Father to complain about the Mother’s alcohol consumption when he leaves [X] with his two nieces, who also drink alcohol. The Mother annexes photos of the Father’s niece Ms D drinking alcohol, downloaded from Facebook.[39]
[39] Annexure B to Mother’s affidavit sworn 4 September 2011
The Mother acknowledges having suffered from depression in the past. However, a question was raised in the hearing as to whether the Mother suffers from a mood disorder known as bi-polar II. There are references to the Mother having been diagnosed with bi-polar II in her medical records from 2008.[40] The Mother denies ever being diagnosed with bipolar disorder and in two and a half years of consultations with a psychologist says she has never been told she has a bipolar disorder.
[40] Exhibits 9 and 10
The Mother has a psychiatric history which is outlined in a forensic psychiatric report[41] prepared recently by Dr R, Consultant Psychiatrist. At the age of 12, the Mother was diagnosed with Obsessive Compulsive Disorder. In 2004, at the age of 17, the Mother had a self-admission to a private hospital for alcohol detoxification, and was treated with an anti-depressant. In February 2005, the Mother had another self-admission after some days of heavy drinking. In June 2005, she was admitted to a psychiatric clinic for alcohol intoxication and treated with an antipsychotic drug. On discharge she attended an out-patient Alcohol Education Programme. In July 2008, the Mother moved to Sydney and commenced seeing a psychologist, Dr E in August 2008. By then she was pregnant with [X]. The Mother tells Dr R she did not drink during pregnancy and did not start light social drinking again until late 2009. In August 2009 she was diagnosed with post-natal depression and prescribed an anti-depressant, Zoloft, which she took for 3 months. In November 2009, she commenced full time employment at [company omitted]. In May 2010, for logistical reasons, the Mother commenced consultations with a different psychologist, Ms C. In mid-2010, at the time of separation, the Mother reports a two month pattern of binge drinking twice a week to “self-medicate.”[42] Since October 2010, she has abstained from drinking when [X] is in her care and for 12 hours prior to [X] coming into her care, in accordance with Court orders.
[41] Dated 27 October 2011 – Exhibit 11
[42] Mother’s evidence in cross-examination
In Dr R’s opinion, the Mother has not suffered a bipolar mood disorder. He does not believe she suffers from recurrent unipolar depression. In his view, the Mother has a vulnerability to alcohol abuse and “deserves to carry a lifelong vigilance towards alcohol consumption.”[43] Mr L gives the same opinion in cross-examination by the Father’s counsel in relation to the Mother’s hospital records.[44] In addition, Dr R believes the Mother has “significant Obsessive Compulsive personality traits in her personality structure” but not an Obsessive Compulsive Personality Disorder or any other personality disorder. He says that the Mother has passive/dependent traits to her personality, which “tends to make her a little excessively compliant and hence vulnerable to manipulation.”[45] Dr R does not believe that the Mother requires any medication but believes she should remain under “the watchful eye of an experienced psychiatrist or psychologist” who would assist her with any flare ups in her obsessive compulsive behaviours and would assist her to self-monitor her alcohol intake.
[43] At page 8 of Exhibit 11
[44] At page 21 of the 6 October 2011 transcript of proceedings
[45] At page 9 of Exhibit 11
Counsel for the Father submits that Dr R’s opinion should be given limited weight because no evidence of his curriculum vitae has been adduced, and because he has been the subject of disciplinary proceedings before the NSW Medical Tribunal.[46] Counsel submits that the Court should find that the Mother has a serious history of alcohol abuse, and is currently drinking to excess. He contends that because her employer at [company omitted], Ms B, tells the Court she was surprised at claims the Mother abused alcohol given her presentation and reliability in the workplace, the Court should conclude the Mother does not expose “her real self” at work.
[46] Exhibit 17
Dr R’s expertise was not directly challenged by the Father’s counsel, who did not require him for cross-examination. I find no basis for the Father’s counsel’s submission as to the minimal weight I should give his assessment. I find that Dr R has been provided with all relevant factual material and has carefully assessed the Mother and the material before forming his view. I accept his assessment of the Mother’s mental state which includes the Mother’s lifelong vulnerability to alcohol.
The Father says that he saw the Mother binge drinking on 16 August 2010, a few days before he travelled to Melbourne leaving [X] in the Mother’s sole care. If the Father observed the Mother drinking the amount of alcohol he describes on the 3 day weekend in July 2010, I find it inexplicable that he would have agreed to [X] (at aged 19 months) spending 6 out of 8 nights with the Mother unsupervised as he did, when final orders were made in October 2010.
The Father acknowledges that he has not directly observed the Mother drinking since separation and has never found the Mother drinking or smelling of alcohol at a changeover. The Father acknowledges that neither his sister nor his nieces have reported the Mother smelling of alcohol at changeovers with them and there has never been any complaint to him about the Mother’s presentation at [X]’s day-care.
I find the Father’s evidence inconsistent and therefore inconclusive as to what he has physically observed the Mother drink or as to the amount the Mother was actually drinking. The Father does not seek orders providing for [X]’s time with the Mother to be supervised. He seeks orders providing for [X] to spend two nights a week with the Mother as well as half school holidays.
I am satisfied that the Mother has abused alcohol in the past, including at times during her relationship with the Father, particularly around the time of separation in mid-2010. I am satisfied that her depression is likely to have affected her emotional availability to [X] at times during the relationship and I agree with Mr L that this is likely to have adversely affected the quality of [X]’s attachment to her. However, I am not persuaded that the Mother has neglected [X] as a result of alcohol abuse or depression, nor am I satisfied that the Mother is presently suffering from depression.
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3). Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Primary Considerations
The benefit to [X] of having a meaningful relationship with both of her parents
It is common ground that [X] has a relaxed and comfortable relationship with each of her parents and will have the benefit of a meaningful relationship with both her parents on either party’s proposal. On the Mother’s proposal, [X] will spend between 2 and 3 days each week with the Father until she starts school and thereafter 4 nights a fortnight, including weekdays and weekend days. On the Father’s proposal, [X] will spend 2 days and 2 nights each week with the Mother, including week days and weekend days.
The need to protect [X] from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
“Abuse” is narrowly defined in section 4 of the Family Law Act as sexual abuse or an assault of a child which is an offence under the law. “Family violence” is defined at section 4 of the Act, as conduct, whether actual or threatened that causes the person to reasonably fear for, or to be apprehensive about, his or her personal wellbeing or safety. Neither issue arises in this case.
As already noted, despite being satisfied that the Mother has been depressed and has abused alcohol in the past, I am not persuaded that the Mother has physically neglected [X] as a result of alcohol abuse or depression. However, I am satisfied that the Mother’s depression is likely to have affected her emotional availability to [X] at times during the relationship and I agree with Mr L that “it is quite possible that there were times when she was less than optimally emotionally and physically available to [X].”[47] I accept the opinion of Mr L that “it is doubtful that [X]’s presentation would generally be considered to be consistent with accepted understandings of the term ‘neglect’.”[48]
[47] At paragraph 34 of Exhibit 1
[48] Ibid
However, the Father alleges that the Mother has physically neglected [X]. He complains that she often dresses [X] in unsuitable clothing, including thongs, which left [X] with blisters and a painful rash on her feet. He says the Mother does not always bath [X] or wash her hair and that she is a careless housekeeper, leaving items on the floor of the home and [X] at potential risk of choking. When he visited on 10 September 2010, the Father described the house as “filthy and unhygienic” and took photos.[49] The photos show an unwashed child’s bottle, a sultana on the carpet, a rubber band on the floor which the Father decided justified him removing [X] from the Mother for a month. The Father said to Mr L “I would do the same today” as he believes the Mother’s neglect of [X] “amounts to child abuse”.
[49] Exhibit 2
The Father says the Mother has neglected [X]’s medical needs. He deposes to a Saturday in early February 2010 when he was away and [X] developed gastroenteritis. Rather than taking [X] to a doctor, the Mother followed the advice of a nursing service. When the Father returned to Sydney on the Sunday, he followed the Mother’s advice as to how to ensure [X] was hydrated. The Father looked after [X] on the Monday while the Mother worked. On Tuesday morning, the Father consulted a doctor “because [[X]] was listless” and she was admitted to hospital with dehydration. The Father contends that the Mother’s decision to enrol [X] in day care exposed [X] to a range of childhood viruses. He alleges that the Mother was rarely prepared to miss work to care for [X], whereas he would juggle his work commitments and seek assistance from his sister when [X] was unwell.
I am not persuaded the evidence supports a finding that the Mother has neglected [X] or that [X] is at risk of harm in the Mother’s care. I find it difficult to reconcile the Father’s contention that [X] is at risk in the Mother’s care with the Father’s agreement in the past that she equally share [X]’s care, and his proposal at trial for [X] to spend two days and two nights a week in her care. I am unable to conclude that the Mother should be blamed for [X]’s admission to hospital for dehydration when the Father had her majority care for at least the 24 hours prior to her admission. And while I accept that [X] may have contracted a raft of minor illnesses because of contact with other children in day care, there is no evidence to suggest the Mother did not manage those illnesses appropriately. I also find it noteworthy that while he may prefer day care to be avoided, the Father himself, in the final orders he seeks at this hearing, does not propose that [X] be removed from day care.
Mr L says that it is unlikely [X] has been neglected on her presentation. He does not find her behind in her developmental milestones, (which may occur if under-stimulated), she does not suffer from prolonged low grade illness and day care staff have not reported signs of neglect over a lengthy period.[50]
[50] At paragraph 34 of Exhibit 1
I give significant weight to these findings.
Additional Considerations
Any views expressed by [X] and any factors (such as [X]’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to her views.
Given [X]’s very young age, this factor does not apply.
The nature of [X]’s relationships with each of her parents and other persons (including any grandparent or other relative of the child)
There is no evidence before me of [X]’s relationships with others. The Father’s sister, Ms H, who has been involved in caring for [X] on a regular basis, is not on affidavit in these proceedings, without explanation from the Father.
The willingness and ability of each of [X]’s parents to facilitate, and encourage, a close and continuing relationship between [X] and the other parent
Each party complains of derogatory comments by the other about that party in front of [X]. The Father tells Mr L that the Mother undermines his relationship with [X] by saying to her “Daddy doesn’t love you” “Daddy has only got broken toys” and “Daddy is bad”.[51] The Mother tells Mr L that [X] says to her “dumb Mummy” “silly Mummy” and “cranky mummy”.[52] I find it likely that at least some of these comments have been taken out of context because I accept Mr L’s observation of [X]’s demeanour when both parents were present with her in the child care room. He formed the view, which I accept, that neither parent has attempted to undermine the other’s parenting, at least in a chronic or systematic way.[53]
[51] At paragraph 14 of Exhibit 1
[52] At paragraph 22 of Exhibit 1
[53] At paragraph 39 of Exhibit 1
However, although [X] has been sharing her time between the parties, which might, at first glance, suggest that the parties actively facilitate a close relationship between [X] and the other party, I find examples on both sides of decisions being made which may have had the effect of obstructing [X]’s relationship with the other party.
On the Father’s side, there are a number of examples of him keeping [X] from the Mother unnecessarily, including a period overseas for nearly 3 weeks and a period in Sydney of 30 days when [X] was under 2 years of age. In addition, I am not satisfied that the Father has complied with the order made in February 2011 which provided for [X] to stay with the party with whom she was living overnight, when the other party was not available to personally care for her. The Father has chosen to leave [X] in the care of his sister, and to collect her late at night to travel back to [suburb A].
On the Mother’s side, she moved an hour and a half’s drive from [suburb A], to the Central Coast, making it geographically impossible for [X] to enjoy easy transitions between the parties in accordance with her developmental needs. In addition, the Mother has not provided [X]’s treating doctor with an authority to speak to the Father.
I give some weight to these findings.
The likely effect of any changes in [X]’s circumstances, including the likely effect on [X] of any separation from either of her parents, or any other child, or other person (including any grandparent or other relative of the child), with whom she has been living
I find each party has shown little insight into [X]’s developmental needs when resolving the parenting arrangements on an almost equal shared basis when she was so young.
On each party’s reports, [X] is presenting as a child in distress who struggles with transitions from one party to the other, with transitions to day care and with transitions to other 3rd parties. The Father has noticed [X]’s distress increasing dramatically in the 6 months prior to hearing, to her losing weight in March/April 2011 and to being “extremely lethargic” after changeover. He says that in March 2011, [X] came into his care exhausted and dehydrated and slept 17 hours in a 24 hour period. He says it is common for [X] to complain of being tired on arrival, being extremely thirsty and to sleeping from 15-19 hours on the first day. In recent months, the Father has found [X] sobbing in her room, clutching her favourite soft toys, and she has been waking in the night for comfort. The Father describes her as looking “forlorn and abandoned”[54] and appearing “sullen and withdrawn”. The Mother tells Mr L[55] that [X] is often reluctant to separate from her to go to the Father. She “moulds into her shoulder” and can be clingy, demanding and aggressive on return to her.
[54] At paragraph 15 of Exhibit 1
[55] At paragraph 24 of Exhibit 1
I accept Mr L’s opinion that [X] is showing signs of serious attachment distress and her arrangements need to change significantly as soon as possible. I give substantial weight to these findings.
The practical difficulty and expense of [X] spending time with and communicating with a parent and whether that difficulty or expense will substantially affect her right to maintain personal relations and direct contact with both parents on a regular basis
Each party is employed full time. Although the Father says his work hours are flexible, he also says that he cannot control [certain aspects of his job]. He travels interstate from time to time, including on weekends and weekdays when [X] is in his care. For example, the Father leaves Sydney between 8 and 9 a.m. and returns at 10.30p.m on 10 Sundays a year for [work]. The Father says that his need to travel out of Sydney has reduced since the global financial crisis in 2009.
The Mother works for [company omitted] at [location omitted] close to Sydney’s CBD. Her travel time to work by train is between 1.25 and 1.3 hours each way.[56] [X] spends two long days in day care in the city when she is in the Mother’s care. The Mother intends to reduce her employment to 4 days a week if [X] is primarily living with her.
[56] Exhibit 12
The Father contemplated relocation from [suburb A] in 2010. In September 2010 he sought an order permitting relocation in 2015. He says he would be unlikely to consider a location nearer to the Mother’s residence because it would be difficult for him to travel to the airport from the Central Coast.
Mr L says that separated parents of a young child have a responsibility to live close enough to each other for the child to have regular and frequent time with each parent.[57] In his opinion, with which I agree, the geographical distance between these parties means it is difficult for [X] to maintain a relationship with both parents “without there being difficult transfers and multiple separations.”[58]
[57] At page 8 of 6 October 2011 transcript of proceedings
[58] Ibid
I have regard to these practical considerations in reaching my decision.
The capacity of each of the [X]’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of [X], including emotional and intellectual needs
As already noted, I find that each party has demonstrated limited insight into [X]’s developmental needs by the care arrangements they have implemented at her very young age in a context of high acrimony and poor alliance between them. I find that [X]’s emotional needs are not being met by either party.
Each party complains about decisions the other has made and I have already given examples of decisions each party has made which I find have compromised [X]’s best interests even further. I find examples of other decisions which demonstrate that each party has a poor understanding of [X]’s needs. These include:
a)The Mother’s decision when [X] was 10 weeks of age and breast-fed, to leave [X] with the Father so she could travel to Brisbane for 5 nights.
b)The Father’s decision to take [X] to Melbourne at the age of 9 months without the Mother for 3 days, and to leave her with a woman who was a stranger to [X] while the Father went to work. The Father seeks to justify his decision on the basis that [X] had heard the woman over the phone. The Mother took no effective steps to stop the Father going.
c)The Father’s decision to travel with [X] around Europe without the Mother for almost 3 weeks when she was 9 months old “to meet friends dear to me”. The Mother took no effective steps to stop the Father going.
d)The Father’s proposal to take [X] to Europe again at the end of 2010 when she 20 months of age, again without the Mother, with the intention of leaving her for a period with a friend in [location omitted].
e)The Father’s decision to deny [X] access to the Mother for approximately 30 days in September/October 2010 and his belief that this caused no trauma to [X] .
f)Each party’s decision to seek an order by consent for overseas travel of up to 3 weeks upon the giving of certain notice to the other party.
g)The Father’s decision to leave [X] in the care of his sister or his niece on many occasions during 2011[59] when he was unavailable and the Mother was available to care for [X]. The Father’s decision to leave [X] with his sister, rather than with the Mother, when he was unavailable to care for [X] until late at night, and would pick [X] up from [location omitted] and transport her to [suburb A]. When the Mother asked for [X] to be left in her care when the Father was unavailable, the Father strongly objected. One email from the Father to her read:[60]
I have personally had enough mental and emotional torture at your hand and would appreciate if you could play by the rules for everyone’s benefit.
[59] The Father’s schedule of flights to and from Sydney is disclosed in part in Exhibit 3. In addition the Father travelled on Virgin and on Jetstar.
[60] At paragraph 69 of Mother’s affidavit sworn 4 September 2011
As already noted, I am not satisfied that the Mother has neglected [X], as alleged by the Father.
The Mother raises no concerns of significance in relation to the Father’s capacity to care for [X] physically and I am satisfied the Father provides [X] with a wide range of stimulating child-focussed activities when she is with him including interesting excursions, outdoor exercise, dancing and cooking and socialising with other children. I find that the Father has taken a substantial role in looking after [X]’s physical needs from a very young age, and is well capable of caring for her.[61]
[61] At paragraph 42 of Father’s affidavit sworn 22 September 2011
I give some weight to these findings.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of [X] and of either of her parents, and any other characteristics of [X] that the court thinks are relevant
As already noted, while the Father raises concerns about [X]’s general health, and I accept she has had a number of viral illnesses, I do not find that [X]’s physical health is an issue in this case. According to her respiratory physician Dr L in June 2011, [X] is “well, alert and happy and is quite within normal range for her age.”[62] I find each party has consulted a medical practitioner with [X] when it has been appropriate to do so.
[62] Annexure D of Father’s affidavit sworn 22 September 2011
The attitude to [X], and to the responsibilities of parenthood, demonstrated by each parent
As already noted, [X] is disadvantaged by the geographical distance between her parents’ homes and neither party is willing to move closer to the other. I find it unnecessary to decide what motivated the Mother to move to [suburb B], but accept that financial considerations were relevant, if not the whole reason for the move. The Father does not want to spend time with [X] at [suburb B] which might relieve [X] from the stress of so much travel, because he says that she needs a 2 hour sleep during the day and where would she have it? While I accept this is a short term practical difficulty, I find the Father could and should spend some time with [X] in the [suburb B] area once day time sleeps are no longer an issue.
I find [X]’s need to travel from [suburb B] each way for over an hour by train each way, for a long day in day care twice a week, onerous for a child of her age even though I accept Mr L’s evidence that the impact of travel on a child of [X]’s age is something for which there is no evidence one way or another.[63] It is not in dispute that at times, [X] is not collected from daycare until 6.00p.m.[64] While I accept that the Mother does her best to find activities to entertain [X] on the long train trips, it is hardly surprising that [X] gets very tired. There is no easy solution to this problem in the circumstances of this case.
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 [X]
[63] At page 16 of 6 October 2011 transcript of proceedings
[64] Exhibit 15
I have considered this factor and have determined that the Orders I have made will reduce the distress [X] is presently experiencing and therefore limit the likelihood of further proceedings between the parties.
The extent to which each of [X]’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of [X]’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to [X], and to spend time with her, and to communicate with her; and has facilitated, or failed to facilitate, the other parent participating in making decisions about major long-term issues in relation to [X] and spending time with her and communicating with her; and has fulfilled, or failed to fulfil, the parent’s obligation to maintain [X].
I have nothing to add under this factor.
Parental Responsibility
Section 61DA requires the court to 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. Section 65DAC applies whenever a parenting order provides for shared parental responsibility and provides for decisions about a major long term issue to be made jointly, by each party making a genuine effort to come to a joint decision about that long term issue.
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.
In this case, the Father seeks an order for equal shared parental responsibility and the Mother seeks an order for sole parental responsibility.
I have decided it is not in [X]’s best interests at present for the parties to have equal shared parental responsibility for [X], although the Mother will be required to keep the Father informed about all major long term decisions and to have regard to his input into those decisions. These parties presently have extremely poor communication and little confidence in the other’s parenting capacity and I find no basis for optimism about improvement. The Father has made decisions which I have found demonstrate poor insight into the needs of young children. I find that the Mother has also shown a poor understanding of [X]’s needs and has been unable to resist pressure from the Father when she has believed his decisions have been against [X]’s best interests. I accept Dr R’s opinion that the Mother has passive/dependent traits in her personality which would make it difficult for the Mother to stand up for [X] if the parties could not agree on a particular issue. I find that [X] would be the likely loser if that were to occur. The Mother will therefore have sole parental responsibility.
Conclusion
The focus of this inquiry has been on [X] and on [X]’s needs, not on the wishes or needs of the parties. [X] is presently in an arrangement providing for 8 nights with the Father and 6 with the Mother each fortnight. Mr L knows of no research in Australia or overseas which would support such an arrangement for a child of this age, including very current research.[65]
[65] At page 50 of 6 October 2011 transcript of proceedings
It is regrettable that several months have passed since Mr L recommended [X]’s care arrangements change as soon as possible because of her attachment distress. I find his report and his evidence in cross-examination compelling as to the urgent need for that change. I accept his assessment that [X]’s primary attachment is to her Mother but her basic trust in her mother’s emotional and physical availability and predictability has been compromised by a range of factors in her attachment history. I accept Mr L’s opinion that if [X] lives primarily with the Father, her yearning for a repaired relationship with the Mother will not be satisfied.[66]
[66] Ibid at page 49
However, Mr L acknowledged the overriding need for [X] to be safe, and advised the Court that if the Mother were found to neglect [X], by drinking to excess, or otherwise, [X] must live primarily with the Father. I am not persuaded the Mother has neglected [X] or not kept her safe, though I accept Dr R’s assessment that the Mother has a vulnerability to alcohol and must be vigilant during her lifetime. I have therefore made an order to restrain the Mother from consuming any alcohol while [X] is in her care and before she comes into her care.
[X] has suffered a confused and unpredictable care history with multiple transitions and changes in carers from a very young age. She is showing signs of confusion and distress and needs a new approach by both parties. I accept Mr L’s expert evidence that [X] needs the chance to repair her attachment relationship with the Mother and that such repair is urgent and, with the exception of her being neglected or being unsafe, outweighs other considerations, which might carry more weight in different circumstances.
I have therefore substantially implemented Mr L’s recommendations, including [X]’s need to live primarily with the Mother, to sleep in the Mother’s home each night for the next 18 months, and to be delivered and picked up by the Mother at the beginning and end of the day when she attends day care. [X] will spend time with the Father during daytime hours on 2 full days each week when the Mother is at work, and on an alternate weekend day until August 2013, being a period of approximately 18 months. [X] will spend Tuesdays at home with the Mother and Thursdays and Fridays in day care as has been her routine. [X] will then commence overnight time with the Father which will be increased when she has had time to settle into school. I am satisfied the Mother understands the importance of being predictably available to [X] as much as possible and will reduce her working days from 5 to 4 days so she can spend one day of her working week with [X] at home.[67] If the Father is unavailable to care for [X] personally, (unless an emergency) she will remain in the Mother’s care, rather than being cared for by the Father’s sister or nieces. If [X] is distressed in the Father’s care, the Father will notify the Mother and the parties will arrange for [X] to be reunited with the Mother as soon as possible.
[67] Oral evidence of Ms B
I find that each party has demonstrated little insight into [X]’s developmental needs, despite being well motivated to do the best for her. I am not persuaded that the parties even now, fully appreciate the damage that has been done and the likely short and long term consequences for [X] if her circumstances do not change. The Father’s proposal does not take into account the recommendations of the Court expert. While I can accept that the Father will be sad to have his time with [X] so reduced, and will need time to adjust to the new arrangements, I am heartened by his obvious concern about [X]’s symptoms of tiredness and distress getting worse over recent months. I am optimistic that the Father will be encouraged by the positive changes he is likely to see in [X]’s demeanour over time with the new arrangements.
I have given consideration to the transport arrangements for [X]’s transitions from one party to the other, focussing on [X]’s best interests and the practicalities of distance. As the Father has flexible work arrangements, I have decided he will collect and deliver [X] from the Mother’s place of work on the two full days she is with him during the working week, so [X]’s routine on the train is the same each day the Mother works until she commences school. On weekends and on special days, the Mother will assist with transport.
I will require the Mother to consult only one general practitioner with [X], as recommended by Mr L, and the Mother will be required to authorise that practitioner to share information about [X] with the Father.
I accept Dr R’s assessment that the Mother is likely to remain vulnerable to excessive alcohol use during her lifetime, and needs ongoing professional support. I find that the Mother has voluntarily sought professional help in the past and is currently under the care of a psychologist. In accordance with Dr R’s recommendation, supported by Mr L, I have ordered the Mother to continue to see her psychologist fortnightly for the next 2 years and thereafter at a frequency recommended by the psychologist.
I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of [X].
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Sexton FM
Date: 6 February 2012
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