Edlund & Sandahl
[2021] FedCFamC2F 253
•26 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Edlund & Sandahl [2021] FedCFamC2F 253
File number(s): ADC 2226 of 2011 Judgment of: JUDGE BROWN Date of judgment: 26 October 2021 Catchwords: FAMILY LAW – parenting – children – best interests of the child – interim hearing – where child has spent limited time with the mother since late-2020/early-2021 – where the child expresses a jaundiced view of the mother – whether these views have been influenced by the father and his conduct – where it is necessary to protect the child from harm and further trauma – where the child concerned has made reports about self-harm – competing proposals from the parties about an appropriate way forward – whether reunification therapy is appropriate. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 68LA. Cases cited: Zahawi & Rayne [2016] FamCAFC 90
Marvel & Marvel (No 2) [2010] FamCAFC 101
Goode & Goode [2006] FamCA 1346
In the Marriage of Harrison & Woollard (1995) 18 Fam LR 788
R & R: Children’s Wishes (2000) 25 Fam LR 712
Edlund & Sandahl [2011] FMCAFam 709
Stevenson & Hughes (1993) 16 Fam LR 443
Mazorski v Albright (2007) 37 Fam LR 518Other:
Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth).
Division: Division 2 Family Law Number of paragraphs: 167 Date of hearing: 11 October 2021 Place: Adelaide Counsel for the Applicant: Ms Tinning Solicitor for the Applicant: Clelands Lawyers Counsel for the Respondent: Mr Dillon Solicitor for the Respondent: Marciano Lawyers Counsel for the Independent Children’s Lawyer: Mr Childs Solicitor for the Independent Children’s Lawyer: Legal Services Commission of South Australia ORDERS
ADC 2226 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS EDLUND
Applicant
AND: MR SANDAHL
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
26 OCTOBER 2021
THE COURT ORDERS UNTIL FURTHER OR OTHER ORDER THAT:
1.The child, X (hereinafter referred to as “X” or “the child”) spend time with the mother Ms Edlund (hereinafter referred to as “the mother”) as follows:
(a)From 10:00 am to 5:00 pm on Saturday 30 October 2021;
(b)From 10:00 am to 5:00 pm on Saturday 6 November 2021;
(c)From 10:00 am to 5:00 pm on Saturday 13 November 2021; and
(d)From 10:00 am to 5:00 pm on Saturday 20 November 2021.
2.Commencing 27 November 2021, on an alternate weekly basis, excluding the Christmas holiday weekend, the child spend time with the mother as follows:
(a)From 10:00 am to 5:00 pm on both Saturday 27 November 2021 and Sunday 28 November 2021;
(b)From 10:00 am to 5:00 pm on both Saturday 11 December 2021 and Sunday 12 December 2021;
(c)From 10:00 am to 5:00 pm on both Saturday 1 January 2022 and Sunday 2 January 2022; and
(d)From 10:00 am to 5:00 pm on both Saturday 15 January 2022 and Sunday 16 January 2022.
3.Commencing 29 January 2022, the child spend time with the mother each alternate weekend from the conclusion of school on Friday, or 3:00 pm if a non-school day, until the commencement of school on Monday, or 9:00 am if a non-school day.
4.The child spend time with the mother for special occasions during the period of the adjournment as follows:
(a)On Christmas Day from 10:00 am to 5:00 pm; and
(b)On X’s birthday from 10:00 am to 5:00 pm.
5.Unless otherwise agreed between the parties in writing, handover is to occur at the child’s school, or at the mother or father’s residence.
6.The child continue to attend upon Dr B (at dates and times deemed suitable by Dr B and Mr Sandahl) at the joint and equal expense of the parties.
7.The mother and the child jointly attend reunification therapy (at dates and times deemed appropriate by such therapist) with a child psychologist or therapist (other than Dr B) as agreed between the parties, and failing agreement, such therapist as nominated by the Independent Children’s Lawyer, with such therapy to be at the joint and equal expense of the parties NOTING THAT such therapist is to be provided with the report prepared by Ms D dated 15 September 2021, together with a copy of these reasons for judgment.
8.Contemporaneously with the appointment of a therapist in order (7) hereof, Dr B be notified of the therapist engaged for the purposes of reunification, and the Independent Children’s Lawyer provide Dr B with a copy of the Family Report prepared by Ms D dated 15 September 2021, together with a copy of these reasons for judgment.
9.The Independent Children’s Lawyer request from the therapist a report on the progress of the reunification between the mother and the child, with the report to be at the joint and equal expense of the parties, and to be filed and served on or before 20 March 2022.
10.The Family Report prepared by Ms D dated 15 September 2021 be released to any therapist engaged by the mother, and retrospectively released to the father’s therapist.
11.From the date of these reasons for judgment, order (2) of the orders dated 25 May 2021 be discharged.
12.The matter be adjourned to 28 March 2022 at 9:30 am.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 28 October 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Edlund & Sandahl has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION:
This is a sad and perplexing case, arising at the interim stage. It concerns the parenting arrangements for one child, X, born in 2009. As the parties are aware, the essential difficulty of an interim hearing is that it takes place in shortened form and the court cannot make findings of fact in respect of issues in dispute. In the present case, there are many issues in dispute.
The parties to the case are X’s parents – his mother Ms Edlund (formerly Ms Edlund) and his father Mr Sandahl. The parties were involved in a de facto relationship between 2007 and 2011.
In the period from separation until recently, X’s care was provided by each of his parents, initially on a split weekly basis (3 days with father; 4 days with mother) and more recently on a week about basis since 2016. Accordingly, it must be the case that X knows each of his parents well.
There is some controversy between the parties as to how much influence X had when the parties reached this agreement. It is the mother’s view that the father has been fixated on equal time and it is he who has been the initiator of the pressure to which X has been subject to achieve this outcome.
This shared care regime broke down in late-2020/early-2021 in highly controversial and emotionally charged circumstances and in the period since, X has spent extremely limited time with his mother, which has been restricted to daylight hours on weekends. This has coincided with X attending upon a psychologist, Dr B, whom the mother has limited confidence.
It is the mother’s position that the father has, over many years, been actively engaging the child in the long-standing conflict between the parties with a view to securing the child’s permanent alienation from the mother. Accordingly, from her perspective, the court needs to take urgent action to restore X’s relationship with her, through a process of extended time to be spent with her, in conjunction with expert counselling, directed towards reunification.
On the other hand, it is the father’s position that the mother is a flawed parent, who has subjected the child to various types of abuse, again over many years. As a consequence, he concedes that X is currently estranged from his mother but, from his perspective, this is a reflection of the child’s direct experience of his mother and he (Mr Sandahl) is only responding, in a protective fashion, to X’s views.
In these circumstances, the father contends, particularly at this interim stage, that the court needs to take an extremely cautious and incremental approach,[1] focusing on what X can cope with. He contends that pushing X to spend time with his mother will be counter-productive and potentially dangerous. For her part, the mother fears that the child not spending reasonably significant periods of time with her, will entrench the child’s negative, inaccurate and confected views of her.
[1] Marvel & Marvel (No 2) [2010] FamCAFC 101 at [120] (Faulks DCJ, Boland & Stevenson JJ).
The parties currently agree that X is a vulnerable and traumatised child. He has been reported to have threatened to harm himself, even to the extent of suicide. He has been consulting with a therapist, Dr B. The parties agree that this individual therapy should continue for him, but that Dr B himself will not be able to provide any counselling directed towards restoring his relationship with his mother.
As previously indicated, the mother does not trust him, particularly because he was engaged unilaterally by the father and it is her perception that he utilised psychologists in the past to secure his own agenda, which was initially to secure a shared care regime in respect of X and more recently to excise her from the child’s life.
In this context of this multi-faceted controversy, the parties agreed to commission an expert child psychologist, Ms D to prepare a Family Report for both them and the court. This will provide an appraisal of the current dynamic of the family and provide advice as to how the relationship between parents and child could be best managed. This report would include the expert interviewing X himself and observing how he interacted with each of his parents.
Ms D reported to the court in mid-September of this year. The following extract from her report is indicative, it would seem, of the emotional pressure to which X feels he is currently subject. X outlines as follows:
“I can't handle it, the stress and anxiety, it builds into a ginormous ball". Of significant concern X said that the stress and anxiety makes him still think about hurting himself. In discussing this he again indicated he would prefer to avoid all contact with his mother. X said his father says "Mum is annoying and exaggerates everything and that everything should go her way and the planet revolves around her". He said his father says " Mr Edlund is a bad person and should not be around me and the kids". X said that his parents get along "horribly", and it has always been like this. He said they yell things like "You should take better responsibility, you're useless, you're the worst parent ever". He further explained, "Every time they see each other they argue about whose fault it is, I am in this deep state of depression". X conveyed both parents engage in this behaviour and that he wishes it would stop. He said he has "always" felt caught in the middle.[2]
[2] See Family Report of Ms D at 9-10.
Mr Edlund is the mother’s current husband, Mr Edlund. The mother and Mr Sandahl have two children together. They are Y aged 5 and Z aged 3. The father has also re-partnered with Ms F. It is common ground, between the parties, that there have been some tensions, in the past, between X and Mr Edlund.
In these circumstances, on 25 May 2021, in conjunction with a regime which saw X spend five hours with his mother on each Saturday, an injunction was made restraining the mother from bringing X into the presence of Mr Edlund. This is the regime which is presently in place and which she regards as inadequate.
From the mother’s perspective, whatever is the state of X’s relationship with Mr Edlund, it is not viable that he be excised permanently from X’s life, given that he is the father of X’s two step siblings. She believes that it must be in X’s best interests to maintain a relationship with Y and Z.
It is apparent that Mr Sandahl and Ms F do not have a particularly positive view of Mr Edlund (and he of them). The father outlined during the hearing that he wishes to maintain the injunction at this stage. However his written proposal outlines that this injunction can be discharged, provided that Ms Edlund is present at all times when the child X is in the presence of Mr Edlund.
The mother and father are not the only parties to the proceedings. Given the significant conflict between them and given X must be regarded as a relatively mature child, whose views are likely to be integral to the outcome of the case, it was ordered that he be represented independently of his parents.
X’s representative is Ashley Kent, an experienced family lawyer employed by the Legal Services Commission of South Australia. Mr Kent is to be regarded as a party of equal importance, in the case, to each of the parties. Pursuant to section 68LA of the Family Law Act 1975 (Cth) (“the Act”), Mr Kent is under a statutory duty to gather and examine all relevant evidence and then advocate the outcome, which he believes will best serve the interests of the child, whom he represents.
THE MOTHER’S PROPOSAL
The mother proposes an immediate extension of daytime periods, on the Saturday of each weekend from 9.30 am to 7.30 pm and on the Sunday from 9.30 am until 1.30 pm. This would be for an introductory period of three weekends.
Thereafter, she proposes the introduction of overnight weekend time from 9.30 am each Saturday until 7.30 pm the following Sunday for a further four weekends. This would be extended again, around 3 December, from 3.00 pm on Friday until 7.30 pm the following Sunday.
Initially, collection and return would be at the father’s house, transitioning to school, with the ultimate goal of the process being the reinstatement of the week about arrangement with the transition to occur at 3.00 pm each Monday at X’s school or at one of the parties’ homes, during school holidays. It being envisaged that the week about regime would continue during school holidays, subject to specific arrangements for special occasions such as Christmas and X’s birthdays.
The mother would want the immediate discharge of the injunction concerning Mr Sandahl on the proviso that she and Mr Sandahl would be committed to gradually re-establishing a relationship between him and X.
As previously indicated, although the mother does not altogether trust Dr B, she concedes that it is essential for X’s ongoing emotional health that he continue to consult him. However she would want Dr B to be provided with a copy of Ms D’s report.
A more significant aspect of the mother’s case is her proposal that she and X attend upon another psychologist for the purpose of engaging in reunification therapy. Her current position is that this should be provided by Ms G. Again, the mother believes it is essential that Ms G have access to Ms D’s assessment of the family dynamic as expressed in her report. She also seeks that the involvement of Ms G be at the parties’ joint expense.
In her report, for various reasons, which will be expanded upon in due course, it was Ms D’s recommendation that both she and the father seek their own therapeutic support to aid them to work more effectively with Dr B. The mother supports such an initiative so far as the father is concerned but not for her. Through his counsel, Mr Dillon, the father indicated that he had begun to see a social worker but, apart from the person’s name, I have not been provided with any further information about him or the ambit of his involvement.
Potentially, there could be the involvement of up to five therapists/psychological experts in the life of this particular family, namely Dr B (for X); a therapist for the mother; a therapist for the father; Ms G (reunification between X and his mother); and Ms D (expert evidence of the court).
X himself is the person most intimately affected by these proceedings and the orders which ensue from them. Regardless of its precise aetiology, the fact remains that he is estranged from his mother and has expressed to Ms D an extremely jaundiced view of her. In these circumstances, there must exist a very real possibility he will decamp from his mother’s home.
In these circumstances, Ms Edlund seeks an order that the father immediately return the child to her care, as directed by any applicable court order and, if he fails to do so, his time with the child be suspended. This is strenuously opposed by the father as draconian and unworkable. On the other hand, the mother contends that it is an essential safeguard otherwise the father will continue to manipulate X to secure his own ends.
THE FATHER’S PROPOSAL
Mr Sandahl’s position is that the court should adopt an cautious and incremental approach to any increase in X’s time with his mother, given what he would characterise as the child’s emotional vulnerability and current extreme antipathy for his mother and Mr Sandahl, which he would attribute to the X’s lived experience of his maternal family.
This is the central evidentiary issue in the case, which cannot be satisfactorily resolved at this interim stage. The mother’s view being that the father is actively attempting to align X with him and against her. As the case unfolds, the as yet untested opinion of Ms D, regarding the reasons for this family dynamic, has the potential to be central. In this context, Ms D has noted the alignment that as developed between X, and his father and stepmother.[3]
[3] Ibid 17.
The parties acknowledge that there is such an alignment but fundamentally disagree about its aetiology and how to manage it in the short to longer term. The mother proposes more urgent and targeted remedial action. The father a more conservative and what could be characterised as a child focussed approach. In my view, each approach has both merits and potential pitfalls, which are difficult to gauge at the interim or provisional stage.
The father’s initial proposal is that X should immediately start to spend time with his mother from 10.00 am until 5.00 pm each Saturday, as well as on Christmas Day. This would represent a modest increase of two hours in respect of the time X currently spends with his mother, pursuant to the order of 25 May 2021, which Ms Edlund regards as inadequate and tokenistic.
This time would increase to include each Sunday from 10.00 am to 5.00 pm but only from 1 January 2022 onwards and be consolidated, when the school year commences to take up two out of three weekends. At this juncture, the father opposes the introduction of any overnight time. He proposes a block of daylight time for X to celebrate his birthday with his mother.
In a spirit of compromise, but which Mr Sandahl asserts reflects the current degree of difficulty in the relationship between X and Mr Edlund, the father assents to the discharge of the injunction concerning Mr Sandahl but only on the proviso that the mother is present at all times that X is in the presence of Mr Edlund.
All agree that X should continue to consult with Dr B, and that the Independent Children’s Lawyer provide him with a copy of Ms D’s Family Report. Where they disagree is on the therapeutic management of X’s relationship with his mother and how it can be restored. The father’s proposal is less formally targeted and renders Dr B as the lynch pin for any further normalisation in the relationship between X and his mother (and by extension with Mr Sandahl).
This approach originates with Ms D, who recommended as follows in her report:
The writer recommends that both parents seek their own regular therapeutic support as a matter of priority, and work in conjunction with Dr B's support of X (Dr B can set out what he is willing to offer, it may be that he works solely with X, in a non-reportable way, but can with X's permission highlight areas of ongoing concern to the parents/their respective therapists). All therapists involved will benefit from seeing this report. It cannot be Dr B's role, as he has already highlighted, to make recommendations about parenting time, as this impacts on his capacity to conduct therapy. Decisions regarding parenting time will need to be made by the parents, or the Court. X will first need to resume seeing his siblings, and stepfather. The latter may need therapeutic support.[4]
[4] Ibid at 19
As indicated above, Mr Sandahl has already sought some therapeutic support for himself and has released Ms D’s report to his therapist. Ms Edlund does not advocate any specific order requiring her to have any form of individuated therapy. Rather, as indicated above, she seeks a formalised therapeutic intervention for her and X, which will proceed in tandem with the privileged support to be provided to X by Dr B. Mr Sandahl resists him being involved in providing any of the cost of this intervention.
By necessary implication, Ms Edlund hopes that this reunification counselling will provide a pathway for her to spend more time with X in as normalised context as possible. She doubts that she and Mr Sandahl will be able to agree on anything via any process involving Dr B, particularly, as Ms D notes, Dr B does not see it as his role to recommend anything.
In these circumstances, Ms Edlund contends that the process advocated by Ms D is destined to be slow and ultimately will fail, unless the court is engaged regularly and proactively. She points to the final sentence of the paragraph quoted above which details the pressing need for X to resume spending time with her and his siblings.
The difficulty with these aspects of Ms D’s report are firstly, I have no information regarding what Dr B has to offer the family; and, secondly, Ms D has not delineated with any precision the parameters of the time X should start to begin to spend with his mother and siblings. Dr B cannot provide this indication; the parties cannot agree; Ms D is silent on the detail of the issue; the court must therefore determine the issue.
The father proposes that Ms D engage with X fortnightly at the joint expense of his parents. He would want Dr B to provide a brief update report prior to the court’s next involvement. Whether Dr B is prepared to do this and what he perceives his role in so doing is not clear to me given what Ms D has indicated.
THE PROPOSAL OF THE INDEPENDENT CHILDREN’S LAWYER
The father and Independent Children’s Lawyer essentially share the same position that is the continued involvement of Dr B in tandem with each of the parties’ individual therapists. Mr Kent favours the start of consecutive Saturday and Sunday time on two out of three weekends from the start of the school year in 2022.
He supports the discharge of the injunction regarding Mr Sandahl from 18 December 2021 onwards. Each party would be responsible for their individual therapy and would share half the cost of X’s involvement with Dr B.
ISSUES
Clearly, the family in this case is at a point of crisis. The focus of this crisis is X, a child who is clearly emotionally vulnerable. In determining the appropriate outcome, I must remain focussed on the legal principles applicable, which are set out in Part VII of the Act. In this context, I must hold as my lodestone the best interests of X, who is not, in any way, responsible for the difficult predicament confronting the court and his parents, although, sadly, he is at its fulcrum.
However, as the Full Court of the Family Court recently remarked, the simple fact that a judge must determine what is in a child’s best interests is axiomatically not in that child’s best interests. Rather,
[W]hat is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests.[5]
[5] See Zahawi & Rayne [2016] FamCAFC 90 [47] (Thackray, Murphy and Austin JJ).
One of the central aspects of Ms D’s report is that it would be preferable, so far as X’s best interests are concerned, if his parents cooperated, under the aegis of Dr B, in an informal but child-focussed process of therapy directed towards repairing the mother’s relationship with X.
I agree that this is a laudable aspiration but, at this juncture, I would be naïve to think that it is an objective that could be easily achieved given what I apprehend are the extremely polarised positions of the parties, which have been so polarised for many, many years. I am concerned that there is no easy consensual fix available in this case, which will appear through the individuated therapy suggested by Ms D.
In applying the relevant provisions of the Act, I think it would be useful to delineate verbatim the principles and objects which underpin them. They are important in the sense that the central issue for the court, at this stage, is what is the best mechanism for X to retain his rights to know and care for by both his parents and spend time with each of them; whilst at the same time ensuring his emotional integrity and safety.[6]
[6] Family Law Act 1975 (Cth) ss 60CC(2)(a)-(b).
These issues have importance both in the short term and the longer term. Children gain a sense of their identity and who they are as individuals by interacting regularly with their parents and siblings as they develop.
A child may have differing perspectives of their parents, one as a pre-pubescent teenager; another as a more mature young adult; and another as an adult. Relationships are not necessarily fixed but can be mutable. Children inherit characteristics from their parents. Siblings share a genetic inheritance with one another and with their parents.
In this context, it is important that, even in the most hostile of circumstances, efforts are made to both sustain and extend these significant relationships, for any child, which the law recognises as being central to the implementation of the Family Law system in Australia.
The objects of the legislation pursuant to section 60B(1) are as follows:
(b)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
(c)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(d)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(e)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles, which underpin these objects, are set out in section 60B(2) and are as follows:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Essentially, the legislation recognises that parents are given a preeminent status in making decisions about their children and being involved in all aspects of their children’s lives to the maximum extent that is consistent with the best interests of those children. The aim of the law is to ensure children have meaningful relationships with their parents, but remain physically and emotionally safe and secure.
This is the central issue in the case, at this stage. The court has to determine what is the best way in which X can maintain a level of relationship, with his mother, in the currently extremely conflicted circumstances and how can that relationship be safely extended without either irremediably damaging the relationship or causing him unnecessary angst.
This issue must be determined in a context which recognises the potential importance, for X, of having a viable maternal relationship, as he grows into adulthood in order to have a well-rounded sense of personal identity. Although X’s personal preferences are important, it must be borne in mind that he is still far from being fully mature.
THE NATURE OF AN INTERIM HEARING
Interim hearings very often arise against a background of serious family crisis and controversy. Obviously this is the situation in the present matter. Given the nature of the particular crisis involved, the court may be required to make any necessary determination expeditiously.
The need for such expedition dictates that the hearing concerned should be truncated. As a consequence, such a shortened hearing does not allow any extensive examination of the relevant evidence, particularly through a process of cross-examination.
Given the truncated nature of interim hearings, the Full Court has cautioned first instance courts, such as this one, of the dangers of being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[7]
[7] See Goode & Goode [2006] FamCA 1346 at [68] (Bryant CJ, Finn and Boland JJ).
However, a decision must still be made. In the present case, this will essentially focus on an assessment of risk. What are the risks of X losing a viable maternal relationship at this stage of his life, if appropriate action is not taken to be balanced against the risk of unduly pressuring the child, in the volatile and vitriolic circumstances of the parties, which brings this result about anyway.
In Deiter & Deiter,[8] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.[9]
[8] See Deiter & Deiter [2011] FamCAFC 82.
[9] Ibid at [61] (Finn, Thackray and Strickland JJ).
In the present matter, there are many controversies, which chiefly arise between the parties themselves, as to who of them is driving the endemic conflict between them and whose actions are responsible for X’s current extreme antipathy between his mother. These controversies cannot be resolved in the course of this hearing, and it is not beyond the bounds of possibility that each party (and Mr Sandahl) has contributed, in varying degrees to the current crisis.
However, it is not the case that there is no independent evidence to assist the court. Ms D has prepared a detailed report. I appreciate that her opinion and its underlying methodology has not as yet been subject to any detailed scrutiny through a process of cross-examination. But the fact remains, she comes to the case as an independent and well-qualified expert.
Ms D has a significant advantage over me in the case. She has met each of the parties and X himself and seen them interact together. In these circumstances, given her independence and expertise, it would be imprudent for the court to overlook her opinion and recommendations unless they are obviously flawed in the light of other evidentiary material.
HOW THE COURT DETERMINES A CHILD’S BEST INTERESTS
At the outset, it is to be noted that, although the nature of a hearing is different at an interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. They are contained in Part VII of the Act.
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration.[10]
[10] Family Law Act 1975 (Cth) s 60CA.
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.[11] The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
[11] Ibid ss 60CC(2)-(3).
There are two primary considerations, which are as follows:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.[12]
[12] Ibid s 60CC(2).
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration”.[13] Future protective issues for a child are the court’s priority.
[13] See Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth).
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright,[14] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.[15]
[14] See Mazorski v Albright (2007) 37 Fam LR 518.
[15] Ibid 526 [26] (Brown J).
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share an experience.
Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this particular case, sub-paragraphs (a);(b);(d);(f); and (g) of section 60CC(3) are likely to be relevant. These subparagraphs deal with the following issues:
·The views expressed by the child, and any factors relevant to the weight to be given to those views, particularly the maturity of the child concerned;
·The nature of the child’s relationship with parents and significant other persons, including grandparents;
·The effects of any change in the children’s circumstances;
·The capacity of parents to provide for the child’s emotional and intellectual needs;
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual circumstances relating to the child may be addressed in any order which the court makes.
In the context, of the additional considerations, factors relevant to X’s views are both central and highly controversial. The mother’s position is that X’s views are being manipulated by his father, who is taking advantage of the child’s lack of perspective on his family as a consequence of his lack of maturity. On the other hand, the father asserts that X is expressing views founded on his own direct experience of his mother.
The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[16] A child is not required to make a decision about the appropriate outcome in any particular case. Nor are they required to express an explicit wish as to which parent or other significant person they want to live with, or spend time with. Indeed, to require a child to express such a preference may, in itself, be emotionally abusive.
[16] See Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) at [54]-[56].
However, it seems that the court is required to explore the child’s perception of what they feel is likely to be best for them. Very often these perceptions will be ambivalent and difficult to express or quantify. Over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[17]
[17] See In the Marriage of Harrison & Woollard (1995) 18 Fam LR 788, 797 (Fogarty, Baker and Kay JJ).
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”.[18] What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.
[18] See R & R: Children’s Wishes (2000) 25 Fam LR 712, 724 [54] (Nicholson CJ, Finn & Guest JJ).
PARENTAL RESPONSIBILITY
The legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her.[19]
[19] Family Law Act 1975 (Cth) ss 61DA.
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence.[20]
[20] Ibid s 61DA(2).
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned.[21]
[21] Ibid s 61DA(4).
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing.[22]
[22] Ibid s 61DA(3).
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both their parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Act.[23] It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
[23] Ibid s 65DAA(3).
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider the distance between the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
An earlier order of the court provides for the parties to have equal shared parental responsibility for X and until recently he was living in an equal time regime. Neither party seeks currently to revisit the issue of parental responsibility – I assume through oversight.
At present, it seems axiomatic that equal time is neither appropriate, at the interim stage, nor practical given X’s ostensible position. In due course, the mother seeks to return to the equal time regime.
BACKGROUND
The mother first commenced proceedings, in this court, on 16 June 2011, shortly after the parties’ final separation, seeking an urgent listing and orders that X live with her. The father responded to this application on 4 July 2011 seeking orders that X live with him. Each party proposed that the child spend time, with the other, as agreed, from time to time.
At this early stage, the parties’ respective positions, in respect of the other’s parent, was clearly delineated and extremely polarised. For her part, the mother asserted that:
·The father was a controlling and abusive person, who was fixated with money;
·The father did not maintain proper parental boundaries with X;
·The father was impossible to deal with in respect of arrangements for X’s care.
For his part, the father deposed that the mother was a compromised parent, for the following reasons:
·She had been diagnosed with a mental illness, which he described as a “split personality disorder”;
·She had made several threats to commit suicide;
·She had been observed to inappropriately submit the child to physical discipline;
·She was profligate with money.
The case came before me, for the first time, in these extremely polarised circumstances, on 6 July 2011. I was called upon to determine interim living arrangements for X, at this stage, as the parties themselves, were unable to do so.[24]
[24] See Edlund & Sandahl [2011] FMCAFam 709 (Brown FM).
At this early stage, the only factual issue agreed between the parties was that the father was an IT consultant, who worked long hours and the mother was engaged in home duties. In these circumstances, the mother contended that it was axiomatic that she must have been X’s primary carer, which was significant given his tender years at the time.
As I explained to the parties at the time, I was not in a position to resolve the various significant factual issues arising between them at the interim stage. Rather, I would put in place arrangements to investigate the father’s significant allegations that the mother had physically and mentally abused X by seeking information from the child protection authorities. In tandem, with these enquiries, I directed that the parties themselves attend a Child Dispute Conference, with a Family Consultant, Mr H, which took place urgently on 18 July 2011.
Against this difficult background, I determined that X should continue to live predominately with his mother but spend regular periods of time, with his father, on each Tuesday, Friday and Sunday. It was a condition of this time that the father seek leave from his employment; whilst the mother was injuncted from subjecting the child to physical discipline.
Mr H provided the following impressions of the parties:
Both agree that their relationship was never a “good match”. From both accounts there was considerable conflict at times, which included verbal hostilities on both parts. Physical violence was not identified as a significant factor by either party.
Each claims to have felt intimidated by the other. Mr Sandahl was observed to be a man of clear and strong views, who is capable, when pressured of taking a single-minded approach to obtaining his goal. From this perspective it is not difficult to appreciate Ms Edlund’s sense of intimidation. Mr Sandahl saw Ms Edlund as threatening to withdraw X as a way of controlling him. His emotional presentation would support the suggestion that he found this very distressing and intimidating.
Mr Sandahl is strongly focused on equal shared care, but indicated preparedness to advance arrangements incrementally. Ms Edlund presented as not opposed in principle to shared care, but as wanting to take a stage approach to establishing an appropriate regime. Mr Sandahl in particular seeks overnight care. Ms Edlund was negotiable on this issue.
There is potential for this matter to become very entrenched. However, there is also potential for the parents to work constructively in X’s best interests. They appear to have the ability and the goodwill to do so.
Both have accepted a referral to a private psychologist.
Thereafter, perhaps surprisingly, given Mr H’s summary, the parties were able to agree on a shared care arrangement for X, which was ratified by the court on 25 July 2011. This agreement saw the child spending each week from 8.30 am on Thursday to 7.00 pm the following Saturday, in his father’s care.
The relevant child protection authority (then known as the Department for Families and Communities (Families SA)) provided documents to the court, in respect of their involvement with X, in July of 2011. I have not been told the contents of those documents but anticipate that if there had been any substantiated allegations of abuse, I would have been advised of them by the solicitor for the father. In addition, neither party chose to provide any further evidence regarding the allegations of mental infirmity on the mother’s part.
Rather, through the latter stages of 2011, again against expectations, given their initially extremely polarised positions, the parties worked towards agreeing a final regime for X’s care. Regrettably, it would seem to the case that this agreement, as X himself reports, reciprocated with any improvement in their relationship as parents.
This agreement was ratified by the court, without any further documents having been filed, on 7 September 2011. The agreement saw X living with his parents on a split week basis. The consent order was apparently reached with the assistance of a mediator, Ms J, who agreed to be involved with the parties, in future, if other areas of disagreement arose between them.
The next thing, which occurred, was on 14 December 2017, when the mother made an application for the issue of a passport for X and for ancillary orders authorising his travel, both interstate and overseas. This occurred in the context of her marriage to Mr Sandahl. He is a finance professional and has worked overseas, from time to time, including in Country K.
At this stage, the mother confirmed that X had been living in a week about shared care arrangement since 2016. She indicated that she wished to be able to travel, with X, to places like island L, Country M, Country N, Europe and other parts of Asia, just as many other families do. It was her position that the father had declined to consent to such travel, in the context of a mediation process, which she had organised.
The father responded to this application in March 2018. He did not oppose either interstate or overseas travel, for X per se, but sought orders that such travel only occur during the other parent’s week of care. He also sought to be able to retain the child’s passport and limit travel to countries, which were signatory to the Hague Convention on International Child Abduction.
In his answering Affidavit, he raised concerns about the mother’s care of X, which included that her dog had bitten X, and the mother herself had failed to communicate significant issues, regarding the child’s illnesses and school attendances, with him.
The issue of overseas travel, was consensually resolved by the parties, in March of 2018, when an order was made authorising X to be able to travel for periods not exceeding 2 weeks to countries which were not subject to any high level travel advisory issued by the Commonwealth.
THE CURRENT PROCEEDINGS
The mother commenced the current round of proceedings on 4 February 2021. On both an interim and final basis, she sought orders that X live with her and she have sole parental responsibility for him. She proposed X spend time, with his father, during school terms, on alternate weekends and, during school holidays, for one half of each school holiday. Accordingly, she proposed a dramatic change to the comparatively long-standing equal time regime.
Given the significant emphasis, the legislation places on the protection of children from the exposure to psychological harm, the applicable legislative provisions mandate each party in parenting proceedings filing a notice known as a Notice of Risk.
In her Notice of Risk, Ms Edlund indicated as follows:
The father is causing the child to suffer serious psychological harm by deliberately placing him in a position where he is being forced to make adult decisions regarding his future care arrangements and by tacitly approving of those decisions when it suits the father by having the child spend more time with the father than the mother.
The child is suffering significantly psychologically because of the father's actions but this type of behaviour is very difficult to report to the Police and when the Applicant mother has spoken to the Police about it, they have indicated this matter is best dealt with in the Family Court jurisdiction.[25]
[25] See Notice of Risk filed by Ms Edlund on 3 February 2021 at 3 [10].
In her supporting Affidavit, the mother deposed that she had consented to the shared care regime, in effect against her better judgment, as a consequence of what she perceived as the father’s unending campaign to undermine her role as a parent, which had included him arranging unilateral psychological care for X.
It was her position that the shared care arrangement had broken down in 2020, and thereafter she had had extremely limited time with X. In all these circumstances, it was Ms Edlund’s submission to the court that urgent steps were needed to reinstate X’s relationship with his mother, which justified the extreme outcome proposed by her.
The father responded to this application on 21 April 2021. On both an interim and final basis he sought orders that would see X living with him, and he have sole parental responsibility for the child. In his Notice of Risk, he alleged as follows:
That [the] applicant mother’s husband Mr Edlund, physically removed headphones from the child X, then threw X’s laptop against the wall. Mr Edlund told the child that if he (the child) did not want to live with them (the mother and Mr Edlund) to “get your shoes on and get the fuck out”.[26]
[26] See Notice of Risk filed by Mr Sandahl on 21 April 2021 at 4.
In addition, in the context of the mother’s mental health, he alleged that she had limited insight with regards to the child’s wishes, care and wellbeing. He also asserted that due to Mr Edlund’s travel overseas, there was a risk of the child being abducted overseas.
It was against this highly polarised situation that, on the first return of the parties’ competing applications, that an order was made for X to be independently represented in the proceedings. The matter then proceeded to an interim hearing in May 2021. In addition, on this occasion, I was not prepared to accede to the mother’s application, given the paucity of evidence regarding both X’s views and what were the factors influencing them.
As a consequence, it was on this occasion that the parties agreed to engage Ms D to undertake a Family Report. In addition, an injunction was made restraining the mother bringing X into the presence of Mr Sandahl. It was at this stage, that the parties agreed that X would spend weekly periods of day time, with his mother, for periods not exceeding 5 hours.
THE FAMILY REPORT
To Ms D, the mother reported her concerns that X was an anxious child, whose negative thoughts could spiral out of control. Her major concern was that, from an early age, Mr Sandahl had drawn the child into discussions regarding the division of his time between each of his parents.
To Ms D, the father reported his concern that X struggled in his mother’s care, particularly in the context of being screamed at by his mother and Mr Edlund, which had led to an increase in the child’s anxiety levels. Otherwise, it was the father’s view that X was an extremely happy child.
Ms D’s impression of X was of a disengaged/emotionally shut down child. He expressed only negative views of his mother to Ms D. These can be summarised as follows:
·She had a ginormous house, whilst his father’s home was normal;
·She changed house frequently;
·She had threatened his father and step-mother;
·She just wanted him for child support.
Nonetheless, Ms D also noted as follows:
Despite X's extensive criticism of his mother including reporting that he hates her "with a passion", in a less guarded moment when doing an activity with the writer he conveyed feeling sad when his mother does not pay attention to him.[27]
[27] See Family Report of Ms D at 8.
Later, during a second observed interaction, Ms D reported as follows:
X was observed interacting with his mother on his second visit to a cafe. The visit was initially uncomfortable for them both, with X barely answering his mother's gentle attempts at conversation. He responded with solemn one-word answers. However, he was willing to play a card game with his mother, and was observed to smile briefly at times, before returning his features into the solemn look. The smiles became more frequent after about thirty minutes, and X even at times laughed, although quickly muffled this.[28]
[28] Ibid at 10.
Ms D’s impression of the mother was of a thoughtful and child focussed parent. Mr Sandahl was reported as making global statements without specific detail. His language, in describing events was categorised as dramatic in its use of language. Mr Sandahl reported his own experiences of a difficult childhood. He asserted that the mother had kidnapped X after separation. X’s interaction with his father and Ms F was described as being marked by gentle teasing on account of Mr Sandahl being unfamiliar with the rules of the card game.
Ms Edlund acknowledged that her husband had acted poorly in respect of the laptop incident, which seems to have been a major factor in precipitating the current crisis. She also reported that Mr Edlund had acknowledged his failure. The mother’s response and attitude to the incident was considered appropriate by Ms D.
In summary, Ms D considered that there elements of realistic estrangement in respect of X’s relationship with his mother – as a consequence of being exposed to conflict; feeling left out because of her other children and him feeling less important. However, she did not consider his current attitude to her was a reasonable one, given what had occurred. In this context, she opined that:
[T]here has been an alignment that has developed between X, and his father and stepmother, who X appreciates for sharing similar interests and he has felt emotionally supported by them. X has seen his father be "wronged" in what Mr Sandahl believes is unfair treatment by the Court system, and having to pay, in X's mind, extremely excessive amounts of child support, again unfairly. He has taken his father's side in what has been an intense, and lengthy, high conflict situation. The risk is that due to Mr Sandahl's own strongly held belief that Ms Edlund is abusive and neglectful, he has behaved in ways that have contributed to X shifting more towards an alienated state than a realistically estranged or simply aligned child. Alienating behaviours include unbalanced accounts of behaviours (talking in extremes and absolutes), denial of the relationship between the child and alienated parent, intrusive behaviours such as frequent phone calls, informing the child about adult issues, such as child support, derogatory statements about the other parent, etc.
Mr Sandahl presented as agitated, possibly anxious himself, and sensitive to issues of abuse due to his own early abusive experiences. He impressed as having fixed, global views about Ms Edlund, he used absolute terms frequently, and while he says he will support X's relationship with his mother, he gave no reason to do so other than the fact that she gave birth to him. In his mind Ms Edlund is abusive, neglectful, not maternal, and she spends time with X either yelling and screaming at him or not talking to him. It is not clear how, with the strength of his views, Mr Sandahl could possibly support X to have a functional relationship with his mother and resolve issues arising in that relationship in an effective manner. If it were up to X at this stage, living with his father, he would choose to never see his mother again. This is not a choice reflective of resilience or having sufficient emotional maturity to make this decision, despite his age. This impresses as an anxious, possibly also angry choice, preferring to avoid rather than develop the coping skills to manage moving between his two homes.[29]
[29] Ibid at 17.
Given these views, Ms D’s observed as follows:
·There was no reason why X should not begin to spend substantial time with his mother;
·He should have a relationship with both his father and mother. As such there should be a gradual return to shared or substantial care;
·Ms Edlund needed support in responding to X’s care without defensiveness, which was regarded by Ms D as being justifiable given she was under constant criticism;
·Mr Sandahl needed to exercise parental responsibility to support X having a relationship with his mother.
These recommendations were made in the context of endemic parental conflict, with neither parent having any confidence whatsoever in the capacity of the other. In addition, it was recognised that given the conflict between Mr Edlund and X, there was a need for the former to moderate his parenting style and for the mother to take over discipline from him.
Given the impression Ms D had formed of the mother’s parenting skills and insight, she was of the view that:
Mr Sandahl is overestimating the risks to X in his mother's care, and in trying to be protective, he has not been able himself to reality test his thinking and provide reassurance where appropriate. In these circumstances, while Ms Edlund and Mr Edlund have made mistakes, it is the writer's view that the bulk of the responsibility for X's current vulnerability rests with Mr Sandahl. Mr Sandahl's behaviour may also be strategic, in achieving an outcome he wants (e.g., deliberately misrepresenting Dr B' intervention and advice, see Affidavits). However, the writer is of the view that it is more likely that given the pace at which Mr Sandahl thinks and talks, his level of emotional reactivity is so high he is at risk of unintentionally misinterpreting advice given, to fit with his very significant concern for X.
If Mr Sandahl cannot develop insight into his own contribution to X's current distress, high anxiety and overall lack of resilience, and adjust his parenting style accordingly, there are risks for X to continue to be in his father's primary care. An obvious consideration is whether from a psychological perspective a reversal in primary care would be appropriate. However, the writer is concerned that if this were supported, X's development has already been so compromised by the exposure to intense, overwhelming, long-term conflict, focused solely on him, that he would be unable to manage this. In essence, the writer's concern is that the dynamics at play (high conflict, alienation, estrangement, alignment) have gone on for so long the damage may not be able to be undone. X's anxiety regarding his mother, siblings and stepfather is extreme. He has spoken about wanting to self-harm. He does not yet have coping skills that could assist him to manage a reversal of care.[30]
[30] Ibid at 18.
Accordingly, at this point, Ms D was of the view that there was a significant level of risk in X remaining in his father’s care because his attitude towards his mother may become more, rather than less polarised given his father’s unrealistic antipathy for Ms Edlund. However, at this time, in these extremely difficult circumstances, there were also risks for X’s emotional wellbeing if he was precipitously moved. In this sense, the case presented a dilemma.
This led Ms D to recommending what she characterised as the least detrimental outcome for X as follows:
In these circumstances, the least detrimental option for X is, on the basis that the Court has sufficient confidence in Mr Sandahl's care of X, that X is reassured that he will continue to live with his father, but an essential part of this arrangement is that X spends regular time with his mother, in both visits and therapy (pending Dr B's agreement), with the intention that time will develop into substantial time. The chances of this succeeding will be maximised without ongoing Court proceedings in the background, which clearly cause X significant stress and further anxiety. This will require, as above, Mr Sandahl to meet his parental responsibility of supporting X's relationship with his mother in a genuine manner, beyond "lip service”.[31]
[31] Ibid at 19.
In terms of what was the degree of regular time required for the mother to spend with X, Ms D suggested starting with a full day; then, after about three months, moving to two full consecutive days, with X returning to his father’s home to sleep; then after another three months a sleep-over being introduced; moving, at a minimum to a full weekend from Friday to Monday.
Ms D, favoured arrangements for X to spend special occasions and blocks of school holiday time, with his mother, after the initial work had been done. The aim being to first maintain and then strengthen the relationship between X and his mother and siblings. However, as noted above, Ms D also indicated that time spending arrangements would need to be made either by the parents themselves (which at this juncture seems unlikely) or the court as it was not incumbent on Dr B to delineate these arrangements.
DISCUSSION
The mother and Mr Edlund acknowledge behaving inappropriately towards X, in the context of the laptop incident. Mr Sandahl would characterise this an incident of family violence, from a recurrence of which X must be protected.
The court must assess the risk of him being re-exposed to such conduct in future emanating from his mother and Mr Edlund. In making this assessment, in my view, the evidence of Ms D is significant. She assessed Ms Edlund to be a child-focused parent, who had a level of insight into the responsibilities incumbent on a parent.
In these circumstances, I do not consider that either Ms Edlund or Mr Edlund constitute an unacceptable risk, insofar as X is concerned. In my view, the greater risk to X’s emotional wellbeing arises from the endemic conflict between the parties, both of whom must be regarded as having some responsibility in its creation.
In these circumstances, and in my view, the court must give significant weight to the benefits X is likely to derive from a sufficiently meaningful level of relationship with his mother and half-siblings, both now and as he grows into maturity through adolescence.
In general terms, it seems axiomatic that X will benefit from exposure to a maternal role model, just as much as a paternal one, as he grows up. As indicated above, this is one of fundamental underpinnings of the Act. In this sense, Mr Sandahl and Ms Edlund are to be regarded as complimentary in their parenting roles for X – one is not more important than the other.
X knows both of his parents well. How could it be otherwise? Given that he has been parented in a shared care regime for the vast majority of his life to date. Clearly, at the present time, X’s relationship with his mother is subject to a significant level of stress. However, in Ms D’s opinion, the relationship between the two remains viable and she assess it important that strenuous efforts be made to rectify the rift to it as expeditiously as possible.
It is, of course, concerning that X ostensibly sees his mother only in negative terms. However, of equal significance is the fact that Ms D noted signs of muted affection and obvious comfort between the two, in the observed interaction, when X let his guard down. It was this series of observations, which led her to conclude that the relationship between the mother and X was capable of being repaired.
In my view, this is the most significant issue in the case and the court, must as best it can, fashion an outcome which has such a result. In an ideal situation, the parties would be able to work towards this outcome consensually but, regrettably, their situation is far from an ideal one. As such, given the lack of both shared trust and goodwill, the court must proceed cautiously.
Why X feels such levels of antipathy, for his mother, is not likely to be attributable to one single factor alone. Clearly, the unfortunate incident regarding the laptop is one factor, as is his exposure to the long term conflict between the parties, which, amongst other things, may have resulted in him feeling compelled to take a side in it.
It is difficult, at this interim stage, to ascertain what role, if any, Mr Sandahl has played in causing X to become so significantly aligned with him and opposed to his mother. Clearly, it is not appropriate that X feels empowered to pass comment upon financial issues relating to his care. These are matters solely in the remit of his parents.
Ms D conjectures that factors relating to Mr Sandahl’s own childhood may have resulted in him being hyper-protected, insofar as X is concerned and so unable to pass a more objective eye over factors likely to lead to him coming to harm in his mother and Mr Edlund’s care.
Significantly, however, Ms D does not rule out the possibility that tactical concerns, motivated by his long standing dislike of Ms Edlund, may also be playing a part. I share those concerns, although they are far from substantiated as yet. However, in my view, they also must play a part in my assessment of the risks, which lie ahead for X. The chief one of which, at this stage, in my view, is that he will lose his relationship with his mother.
In this context, in her report, Ms D cautioned of the danger of Mr Sandahl paying only lip service to the need for X to have some form of relationship with his mother, whilst either passively or actively steering the case towards an opposite outcome. In my view, this danger is a very real one, at this stage.
In my view, this is the major factor which militates in favour of there being some form of independent reunification counselling between X and his mother, which occurs outside of the oversight of Dr B. A further factor tending in this direction is that the mother does not altogether trust Dr B and does not believe that he can provide the sort of support X needs to rebuild his relationship with her. I agree that a new approach is called for, although I am also mindful of the expense involved and aware of the prospective pitfalls of multiple therapists being involved with the same family.
As indicated above, Ms D viewed Ms Edlund as an insightful and sensitive parent. She also viewed X as angry and distressed. As such, Ms Edlund needs the assistance of a person, in whom she has confidence, whilst she goes through the process of re-establishing her relationship with X. This will involve her confronting past mistakes and honestly answering X’s criticisms of her. This must be done in a supportive environment.
Although I have no reason to doubt Dr B’s professionalism and focus on X’s best interests, in the absence of any detailed evidence from him, I am concerned that he may not be able to fulfil the role designated to him by Ms D.
In these circumstances, and in my view, it seems more practicable that the reunification process will take place independently of X’s therapeutic relationship with Dr B. However, Dr B needs to be informed of what is occurring and, for that reason, I will direct that he be provided with both Ms D’s report and a copy of these reasons for judgment.
What role the reunification therapist choses to take with Mr Sandahl and his chosen therapist will be a matter for each of them. I will retrospectively authorise the release of Ms D’s report to both Mr Sandahl’s therapist and any therapist independently retained by Ms Edlund for herself.
An equally vexed question is what should be the formal arrangements for X to spend time with his mother, in the short to medium term, whilst the process of reunification counselling is put in place. The mother proposes moving immediately to the position recommended by Ms D – that is time on Saturday and Sunday, without a sleepover – which Ms D envisages will occur in three months or so. Thereafter, the mother’s proposes a more expeditious implementation of Ms D’s timetable.
In contrast the father’s proposal is more cautious – a stance of which the mother is suspicious. In my assessment, given the polarised views of the parties and the endemic mistrust between them, care must be taken in graduating X’s re-involvement with his mother. To proceed too fast may hold the risk of something going wrong but, at the same time, I concede that there are also risks arising in allowing the current situation to become entrenched.
A balance must be taken between the parties’ positions, whilst giving credence to the opinion of Ms D. Given all these factors, it is probably better to make haste slowly so both X and the father can adjust incrementally to the on-going process of reunification which these orders will inaugurate and which Mr Sandahl has an obligation to support.
Although it was not Ms D’s strict responsibility to delineate the legal issues applicable to the present matter, the fact remains that she did, in fact, whether intentionally or not, summarise the central legal principle which the case raises. This is the parental obligation to support a child’s relationship with the other parent, and not mere lip service to it.
The obligation is an active one. In Stevenson v Hughes,[32] Fogarty J endorsed the following comments:
It is not a sufficient discharge of custodian's obligations, express or implied, to point to words and actions and to say, in effect: 'You see I tried. But the child does not want to go’ and thereafter to figuratively fold their arms as if that were an end of the matter.
Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation.'
[32] Stevenson & Hughes (1993) 16 Fam LR 443, 450 (Nygh J).
In this context, Fogarty J alluded to the situation prevailing in many parenting cases, which have been on foot for lengthy periods of time and which involve significant levels of conflict. His Honour said that it was important that parents “appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance”.[33]
[33] Ibid.
At this stage, as stated in the orders dated 11 October 2021, I propose to retain the current weekly regime of Saturday time, inaugurated on 16 October 2021, from 10.00 am until 5.00 pm for a further four Saturdays commencing on 30 October 2021, which takes us to 20 November 2021. This, I hope will coincide with the start of the reunification counselling.
Thereafter, commencing on 27 November 2021, on an alternate weekly basis, there can be two separate Saturday and Sunday periods, both from 10.00 am to 5.00 pm, with X to return to his father’s household, for four weekends, which will be suspended on the Christmas weekend, when other specific arrangements will be made.
On my calculations this will conclude on the weekend of 15 and 16 January 2022. Following this period, and coinciding with the start of the school year, the time can move to alternate weekends for after school Friday, until the recommencement of school the following Monday.
So far as the festive period of Christmas 2021 is concerned, I will make the orders proposed by the father so that the mother has Christmas Day, from 10.00 am until 5.00 pm with X and the father has Boxing Day. The mother is also to spend time with X on his birthday from 10.00 am to 5.00 pm, which next year falls on a Thursday.
At this juncture, I consider the injunction regarding Mr Edlund can be discharged. It is important, I think, that steps be taken to normalise X’s family. Mr Edlund is a part of the mother’s household and therefore, a part of X’s family, as the father of his half siblings. Necessarily, the two must engage with one another if the child is to have an appropriate level of relationship with his mother, Y and Z.
In all the circumstances, I do not consider that any restriction on Mr Edlund coming into contact with X is proportionate to the objective degree of risk he represents to the child. Those involved need to approach the issue sensibly, and in a child-focussed way. Given Ms D’s impression of the mother, I am satisfied that she will be able to manage the issue sensitively and appropriately.
The mother’s proposals for handover are sensible. The case can return to court, when I anticipate there will be some form of report available as to the progress of the reunification counselling prior to Easter and the end of the first term of the 2022 school year, when further consideration can be given to the next step to be taken.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and sixty-seven (167) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 26 October 2021
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