EAMES & EAMES

[2014] FCCA 2804

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAMES & EAMES [2014] FCCA 2804

Catchwords:
FAMILY LAW – Interim parenting – three children, one with severe anxiety, depression and autism spectrum disorder – child not attending school due to high anxiety – father seeking equal time with child not attending school and substantial and significant time with other children – high conflict between parents.

Legislation:  
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

MRR & GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC ¶93-424

Applicant: MR EAMES

Respondent: MS EAMES

File Number: PAC 1868 of 2009

Judgment of: Judge Halligan

Hearing date: 24 October 2014

Date of Last Submission: 24 October 2014

Delivered at: Parramatta

Delivered on: 24 October 2014

REPRESENTATION

Counsel for the Applicant: Mr Cairns

Solicitors for the Applicant: Glenbrook Legal Services

Counsel for the Respondent: Mr Benetatos

Solicitors for the Respondent: Benetatos White Solicitors

Counsel for the Independent Children’s Lawyer: Ms Solomon

Solicitors for the Independent Children’s Lawyer: Legal Aid Commission

ORDERS

1. The parenting orders made on 3 February 2009 amended on

   
   

   29 April 2009 are suspended pending further order.

2. Pending further order, the mother shall have sole parental responsibility for the children X born on (omitted) 1999, Y born on (omitted) 2001 and Z born on (omitted) 2005.

3. Pending further order, the children shall live with the mother.

4. The proceedings are adjourned for mention at 9.30am on 16 February 2015 to consider the appointment of a court expert and any application for expedition of the final hearing.

IT IS NOTED that publication of this judgment under the pseudonym Eames & Eames is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT PARRAMATTA

PAC 1868 of 2009

MR EAMES

Applicant

And

MS EAMES

Respondent

REASONS FOR JUDGMENT

1. This is the hearing of interim parenting proceedings between the parents of four children, W who is 17, X, 15, Y, 13 and Z, 9.  The father seeks orders suspending parts of orders that were made in 2009 as to the parenting of these children, and then seeks, on an interim basis, further parenting orders, albeit he seeks to differentiate between the orders he seeks for X and those he seeks for Y and Z.  In light of W’s age, it is agreed that no orders should be made in relation to her.

2. The effect of the orders that the father seeks for X would be to implement a week-about equal time care arrangement during school terms and for half of school holidays with each parent in blocks.  For Y and Z, what is sought is, with only minor variation, in effect the reinstatement of the orders concerning those children that were made in 2009 that he otherwise seeks to have suspended.  For clarity’s sake, or by way of explanation, those orders have not, in fact, been observed for some time.  The parties agreed to depart from them.

3. The mother’s position is that the orders previously made concerning the children’s time with the father should be suspended and that, in their place, there should be an order that the children spend time with the father in accordance with their wishes.  She also seeks an order for sole parental responsibility.

4. The position of the independent children’s lawyer is that the prior orders in relation to the children’s time with the father should be suspended and there should be no order of any kind in relation to time.  In relation to the question of parental responsibility, the independent children's lawyer does not express a view.

5. Parenting orders were made on 3 February 2009 and amended on

   
   

   29 April 2009.  In their amended terms, they provide for the youngest three children to live with the father during school terms in alternate weeks from after school Thursday to before school Monday, or before school Tuesday if the Monday is a public holiday, and from after school Thursday to before school Friday in each other week.  They provide that the children spend half of each school holidays with each parent, and they contain specific provision in relation to special occasions.

6. As mentioned, the parties agreed to depart from those orders, so that the overnight time ceased, and the children then spent a period of time from after school till after dinner one midweek day per fortnight, and daytime only on the Sunday of each alternate week during school terms.  The father in his affidavit evidence suggested that the reason for that change was because the children had not been coming to spend the time under the orders with him.  He suggested that that was because the mother was stopping the children spending the time.  There is no evidence that the mother stopped the children spending time.  He suggested that he thought that if he cut back on the amount of time the children spent with him, he may at least see the children consistently, albeit for shorter periods.

7. The mother suggested in her evidence that what prompted the father’s request to reduce his time was the fact that he had re-partnered and could not accommodate the children overnight.

8. There is evidence before the court that the father made statements to clinicians engaged concerning X, consistent with the mother’s explanation of his reason for reducing the time and inconsistent with what he said on his oath.  These are interim proceedings and there has been no cross-examination of the parties.  There has, therefore, been no opportunity to put the prior inconsistent statement to the father.  In those circumstances, it is highly inappropriate that I make any findings impugning the credit of either party.  But where there is that inconsistency between the father’s sworn evidence and a prior statement he was reported to have made, in my view I am entitled to place greater weight on the mother’s evidence, and I do so.

9. The time these children have spent with their father has certainly not been consistent, even under the reduced time regime.  There have been periods when various combinations of the children have not spent time with the father.  This year, the children, in various combinations, have spent time with the father, but not on a consistent basis.

10. The mother’s evidence is that, in the past, W has needed therapeutic intervention in relation to anxiety. 

11. X transitioned from primary school to high school, commencing year 7 in 2012.  He commenced at a (omitted) high school.  At the end of term 1, he was moved by the mother from that school to a (omitted) school.  The mother moved X because he was complaining in relation to his treatment by some of his peers at the high school that he commenced at, and because he suggested that he was socially isolated.  The mother’s evidence – and I do not understand it is contradicted by the father – is that the boy had performed appropriately in his primary school years.

12. However, the change to the (omitted) school did not improve things.  In fact, X has spent only a couple of hours at the (omitted) school since the end of term 1, 2012, and it is doubtful that he has, in fact, spent any learning time in a classroom anywhere since the end of term 1, 2012.  He was diagnosed with significant anxiety and also depression and was medicated.  In the course of the therapeutic interventions to seek to address X’s strong resistance to attending school, he was referred for assessment and was diagnosed as on the autism spectrum.

13. However, it seems, as best I can determine from the various clinical notes that have been tendered into evidence, that the primary problem remains the high levels of anxiety that X suffers.  That anxiety is at such a level that he is totally socially isolated.  There are periods of time when he simply will not leave the home.  That has on occasions impeded the mother being able to get him to see appropriate clinicians.  Ultimately, the mother has applied to enrol the child for distance education, and I understand that it is common ground that, recently, that enrolment has been accepted.

14. However, simply providing X an opportunity for learning outside of a formal school or classroom setting, on the mother’s own evidence, is not a magic wand.  The mother’s evidence is that when the child was not attending school, on a few occasions, she sought to have him complete some academic work and he was unable to do so because he became so stressed and anxious.  Therefore, it is clear that the problem that needs to be overcome before X can engage in any form of education is the anxiety that prevents him doing so.

15. As I understand the father’s case, he suggests that not only has the mother prevented these children spending time with him, as they should have – and I am not satisfied there is evidence of such a fact – but also that X’s anxiety is, in significant measure, a reaction to and exacerbated by anxiety the mother suffers.

16. There is some indication in the material placed before me that the mother, herself, is quite anxious.  There is some indication that certainly that may not necessarily be helping X, but to suggest that it is the cause of X having such serious or severe anxiety is not established on the evidence before me.

17. The other matter that is relevant, bearing in mind the father suggests how anxious the mother is and that this, in his view, contributes to X’s anxiety, is that the evidence suggests that the father not only lacks sensitivity to those levels of anxiety but acts to exacerbate them.  I am particularly alarmed at the fact that in June this year when the children did not go to him as he understood they would, his reaction was to call the police and suggest these children may have been at risk and to request that the police conduct a welfare check.  They did.  The mother’s evidence is that, thankfully, X was unaware of their attendance.

18. Such behaviour by the father shows total insensitivity and disregard for the welfare of these children, especially for X.  If, as he says, X’s anxiety is exacerbated by the mother’s anxiety, then sending the police around when there is no evidence to suggest that he had any basis for doing so, other than that he was frustrated because the children were not with him when he said they should have been, shows that he has a total disregard for the welfare of these children.  He is totally incapable of understanding what their needs are or of meeting them.

19. On that basis alone, I have some real concerns about any orders for these children to spend time with the father being currently enforced.  But this is a family with a very complex family dynamic.  Whilst there is medical evidence before the court in the form of clinical notes and a few reports, none of them being forensic, none of those have been prepared in the context of, or having as a focus, the assistance to the court in attempting to frame appropriate parenting orders for any of these children, particularly X.  They have rather been prepared, and are focused upon, a therapeutic intervention to assist X with his presenting symptoms.

20. Whilst those matters must clearly inform any ultimate decision as to appropriate parenting orders for X, to simply say that they can be automatically transposed into these proceedings is incorrect.  They need to be used – and I am sure they ultimately will be – to assist and to inform an appropriate expert to formulate opinions in relation to issues going to the appropriate parenting arrangements for the children, particularly X.

21. The independent children's lawyer has spoken to the three girls.  She has not spoken to X.  I am told, and I accept, that that was a decision taken after consultation with X’s then treating psychiatrist and because of a concern not to unduly stress X or add to his levels of anxiety.  Having spoken to the three girls, the independent children's lawyer puts to the court that the position being advocated by the independent children's lawyer, that is, that the current orders for the children to spend time with the father be suspended and no other order be made in relation to time or communication, is consistent with the views and instructions received from the three girls.

22. I certainly note the spread of ages, and in particular, I note Z’s much younger age than her two older sisters.  There is no issue, as I have said, that W is of an age where there should be no orders in relation to her.  Y, at 13, is of an age where, prima facie, significant weight needs to be placed upon her views.  So far as X is concerned, the evidence is ambivalent as to what his views might be.

23. Each of these parties suggest, effectively, diametrically opposite things.  The father seeks to suggest that X’s wish is to spend time with him and to have court orders defining the time he is to spend so that, according to the father’s representation, X is not forced to negotiate that time with the mother.  That view seems to be prefaced, as I say, upon the father’s view, of which I am satisfied there is no evidence, that the mother has sought to prevent these children spending time and communicating with the father.

24. The mother’s view is exactly the opposite, that X does not wish any prescription of time to be in place because of a concern that it will expose him to pressure from the father or will expose him to pressure and anxiety in seeking to tell his father when he does not wish to spend that defined time with him.

25. It is, of course, possible that there may be an element of truth to both these perspectives.

26. The impression that I gained from the evidence in this case is that despite the fact that these parties have been separated since September 2005, and, in fact, divorced finally since July 2009, that there has, at all times, been a fairly high level of conflict and tension between the parents to which these children have been fully exposed.

27. The evidence suggests to me that there has not been a pattern of co-parenting or cooperative parenting in the past, and the evidence suggests very strongly to me at this interim stage that there is no realistic prospect of these two parents ever being able to cooperatively parent their children.

28. There is another possible scenario that may be painted here, bearing in mind the mother’s assertion that the father has consistently, both during the relationship and since, been controlling and dictatorial, and that is that if the mother’s evidence that the children at different times have reacted adversely to their treatment by their father and at different times have expressed a wish not to spend time with him, that the mother has sought to, on the one hand, forestall or placate, as she would describe it, a demanding, controlling and dictatorial former partner but, on the other, seeking to deal with the children’s reluctance to go with their father and trying to persuade them to go nonetheless.  If that were the scenario, then one might understand that the mother may have high levels, or higher levels, of anxiety.

29. But as I say, the factual foundations for the various scenarios are in issue, and they will have to await a final hearing for determination to the extent that the evidence presented then may enable them to be determined.

30. The orders that I am asked to make are parenting orders. The children’s best interests are the paramount consideration in determining what orders should be made (s.60CA, Family Law Act 1975).

31. In determining where those best interests lie, the court must have regard to the relevant considerations set out in section 60CC. Those relevant considerations are to be assessed against the background of the objects and principles of Part VI of the Family Law Act, set out in section 60B.

32. When making a parenting order, the court, under section 61DA but subject to subsection (2) of that section, must apply a rebuttable presumption that it is in children’s best interests for the parents to have equal shared parental responsibility for them. And if an equal shared parental responsibility order is made or is intended to be made, then under section 65DAA, the court is required to approach the task in a rigidly structured manner, first approaching the matter by reference to an equal time arrangement, and then if not ordering that, by reference to a substantial and significant time arrangement. I am conscious of what the High Court said in MRR & GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC ¶93-424, about the mandatory requirement to step through section 65DAA very carefully before the court has power to make any order.

33. So far as the relevant considerations are concerned, the first of the relevant considerations is problematic in the extreme in this particular case, that is, the benefit to the children of having a meaningful relationship with each of the parents.  As I say, the father asserts that the children can benefit from a meaningful relationship with him but that the mother has sought to frustrate it.  I say, again, I can see no evidence to support that contention.  The mother, for her part, suggests that the children can benefit from a meaningful relationship with their father, but not in a formally structured regime of spending time.  The independent children's lawyer’s position seems to be that, at this stage, the children cannot benefit from a meaningful relationship with their father.

34. As I say, the complex family dynamics in this case make it very difficult to embark upon the fine distinctions that are required to come to an appropriate decision.  There has been no testing of the evidence, and the evidence before the court is, of necessity, somewhat limited.

35. Doing the best I can in those circumstances, certainly so far as the three youngest children are concerned, there clearly have been problems in their relationship with their father.  The evidence does not support my finding that the cause of those problems has been as the father describes them.  There is, on the other hand, some evidence to give some weight to the cause being as the mother would suggest, not least being the father’s calling the police in June this year, totally unreasonably, and, I am satisfied, with a total disregard for the potentially traumatic effect upon the children of him doing so.

36. Where the only independent voice in this case is the independent children's lawyer, the court, in my view, should be fairly cautious in disregarding that view.  I accept that the mother puts forward a proposal which would certainly leave open the prospect of the children spending time with their father, and certainly, under the orders that the independent children's lawyer proposes, there is no suggestion that there be an order specifically stating that the children will not spend time or communicate with their father.  Therefore, there would be nothing to stop the mother facilitating time or communication for any of the children with the father if any of the children requested it and she considered it appropriate.

37. This case, in relation to the form of the orders proposed, and so far as the opportunity for the children to have a meaningful relationship with their father, from which they may benefit, would seem to be one – because of the complex dynamics, and particularly the dynamics between the parents – where, as it were, the symbolism of the orders and what it may entail for these children seems to be particularly significant.  The mother herself, as I understand it, puts that there should be no prescribed time because of the risk that that will simply put the children in the firing line if they do not wish to go.

38. But on the other hand, making an order even that the children go in accordance with their wishes still, I am satisfied on the evidence, leaves ample scope for there to be further conflict between these parents as to whether or not a child at a particular point in time has expressed a particular wish and whether or not the mother has facilitated it.  There is already evidence of that having occurred.  For these children to have a relationship with each parent from which they might benefit, it seems highly likely to me that all pressure that can be relieved from these children needs to be, and that to me strongly suggests the option proposed by the independent children's lawyer.

1. Beyond the risk to these children – and it is not an insignificant one – of continued exposure to the parental conflict and the way it has played out, I am not satisfied otherwise there are protective concerns for the court to take into account under subsection 60CC(2)(b).  It certainly has not been put to the court that the risk to these children from exposure to the parental conflict could be categorised as either neglect or even as serious neglect amounting to abuse, and I certainly do not so find.

2. So far as the additional considerations are concerned, the first is, of course, a very strong bone of contention between these parties, and I have already referred to it inferentially in addressing the first of the primary considerations, the children’s views.  The independent children's lawyer suggests that the proposal put is consistent with the views of the youngest two children so far as they have been expressed.  At this stage, the court has no independent evidence as to the children’s views.  It has the evidence of each of the parties.

3. In the circumstances of this particular case, where I am satisfied that the level of parental conflict and hostility has been high, where the children have been exposed to it, and where in those circumstances there is a real likelihood that these children may say different things to each parent in an attempt to please that parent, or alternatively to forestall any unpleasantness, I am satisfied I should place little weight upon the evidence of either parent in relation to what they suggest the children’s views may be.

4. The only other significant additional considerations, in my view, that I need to specifically touch upon – and they are, in my view, of particular significance – are the effect of change and the parents’ ability to meet the children’s needs.

5. The change entailed in the orders that either the mother or the independent children's seek are not, in fact, changes to what has been happening.  The change they seek would remove any suggestion that there is, or could be, a legal obligation to abide by orders made in 2009 which the parties agreed to depart from at the father’s instigation.

6. And it is the case that in the past the father has sought to suggest that there is a legal obligation to do so on more than one occasion.  He did so, for example, when he brought contravention proceedings, suggesting that the mother had breached orders that he instigated an agreement to depart from.  There is a suggestion that he has sought to advocate a legal obligation to comply with these orders when he quoted in a message to X part of the orders in relation to telephone communication initiated by the children to their father.  That also, in my view, speaks of a wholly inappropriate involvement of X in the parental conflict, which leads me to the second point.

7. I am not satisfied that the father has an appropriate appreciation of the effect upon these children, emotionally and psychologically, of his behaviours.  Involving X, of all people, in the parental conflict is to be abhorred.  Sending the police around in June this year, particularly knowing the extent of X’s anxiety, is also to be abhorred.  It speaks of a father who has put the conflict with the mother and his desire to have what he wants ahead of the children’s needs.

8. Returning, then, to the effect of change.  The change that the father seeks so far as the two girls are concerned is effectively no change at all to the 2009 orders, but it would put those orders back in place in circumstances where the father himself initiated a departure from them, and that departure caused some distress to the children at the time.  But where the relationship between these parents is so dysfunctional, I am concerned that making the orders the father seeks will simply put the two girls fairly and squarely back in the firing line and in the middle of the battlefield, and that is not in their best interests.

9. It applies even more so for X.  As I understand it, the father advocates X spending half his time with the mother and half his time with the father as a means by which the father might effect X’s re-entry into formal education.  The father, in his affidavit evidence, in my view selectively quoted from one of the child’s clinicians with whom the father had an interview to suggest that that clinician was of the view that it was imperative for X to re-establish his relationship with his father.  In doing so, he chose to overlook a couple of things, that is, that that clinician suggested that the father would have to take things slowly, commencing, perhaps, with simply phone calls and letters.  Instead, the father sought to advocate that view as being support for an equal time arrangement.  It is exactly the opposite.  It clearly suggests that such an arrangement would not be in the child’s best interests.  But the father – and I do not know why – has ignored that particular part of the opinion.  The other part of the opinion of that clinician the father has chosen to ignore is that this child may never get back into formal education.

10. Whilst it is to be desperately hoped that he would, his particular issues and problems require consistency and persistency if they are ever to be overcome.  Where it is clear that the two parents seem to have such a fundamentally different view about what is necessary to address X’s problems, where there is no effective communication between them at all, certainly no child-focused communication, to put X half the time with the father and half the time with the mother would be almost like putting him on another planet for half the time.  It would be totally inimical to his best interests.  I am satisfied, on the evidence, it would greatly increase his anxiety.  It would put him in a position where a child with serious anxiety, suggested to include agoraphobia – whether you put that label on or not, anxiety so serious that on occasions he cannot even leave his home - suffering clinical depression and on the autism spectrum, would swap and change every week between two homes, where the fundamental approaches to his condition and his parenting are diametrically opposed.  It would be disastrous for X.

11. In my view, for that reason also, it is in the children’s best interests that the mother have sole parental responsibility for these children.  These parents cannot cooperate.  It is unfortunately impossible for them to do so.  The children have suffered grievously for it.  But in those circumstances, the parents cannot exercise equal shared parental responsibility.  Decisions will, at times, have to be made.  It cannot be the case that every time they need to be made, this case must return to court.  That will place the children’s best interests in serious jeopardy, bearing in mind the unfortunate long delays now in this court.  The children’s best interests demands that the mother have sole parental responsibility, and I am satisfied it also demands that the orders sought by the independent children’s lawyer concerning time be made.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Halligan

Associate: 

Date:  2 December 2014