ELSTONE & JARMIN (No.2)

[2018] FCCA 1150

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELSTONE & JARMIN (No.2) [2018] FCCA 1150

Catchwords:
FAMILY LAW – Parenting – application by the father for the child to live with him – conflicting family reports – resumption of the child’s time with the father on an interim basis – matter set down for trial.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR ELSTONE

Respondent: MS JARMIN

File Number: ADC 3605 of 2015

Judgment of: Judge Young

Hearing dates: 17, 18 April 2018

Date of Last Submission: 18 April 2018

Delivered at: Adelaide

Delivered on: 18 April 2018

REPRESENTATION

Counsel for the Applicant: Mr Hemsley

Solicitors for the Applicant: Daniel John Lawyers

Counsel for the Respondent: Ms Burkhardt

Solicitors for the Respondent: Adelaide Lawyers

Counsel for the Independent Children’s Lawyer: Hume Taylor & Co.

THE COURT ORDER UNTIL FURTHER ORDER:

1. That order 4.1 of the orders made on 14 February 2017 for the child [X] born 2011 to spend alternate weekends with the father be resumed.

2. That the child spend the second half of the 2018 April school holidays with the father from Sunday 22 April 2018 to Sunday 29 April 2018.

3. That the child spend the second half of the 2018 July school holidays with the father.

4. That the matter is listed for trial on 13, 14, 15 and 16 August 2018 at 10.00am  (allowing four days).

5. That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness complying with rule 15.28 of the Federal Circuit Court Rules 2001 intended to be relied upon at trial no later than 28 days prior to the trial

6. That on or before 28 days prior to trial the applicant pay the setting down fee and the respondent pay such further daily hearing fee as required pursuant to the Family Law (Fees) Regulation 2012.

7. That each party exchange and email to my Associate no later than 2 days prior to the hearing, a case outline setting out:

   (a)a list of the material relied upon;

   (b)a brief chronology listing significant events;

   (c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child/ren (section 60CC factors);

   (d)a list of other contentions relevant to the decision;

   (e)whether the presumption of equal shared parental responsibility applies (section 61DA), and if not the contentions relied upon;

   (f)a list of the considerations relevant to considerations of equal and substantial parenting time (section 65DAA);

   (g)a list of other relevant considerations (including the relevant section number) (for example, sections 60CG, 61F, 65DAB and/or 65DAC); and

   (h)the actual orders sought.

8. That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court.

9. That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 14 days before the commencement of the hearing.

10. That in the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.

11. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

12. In the event any party or the Independent Children’s Lawyer in these proceedings seeks to rely upon any material produced pursuant to s.69ZW then such documents shall be put before the Court by way of affidavit as follows:

    (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

    (b)annexing such material as is considered relevant, with

    (c)the affidavit to be paginated, indexed and exhibits tagged.

IT IS NOTED that publication of this judgment under the pseudonym Elstone & Jarmin (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3605 of 2015

MR ELSTONE

Applicant

And

MS JARMIN

Respondent

REASONS FOR JUDGMENT

Ex - Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting case about [X], who is six years old.  I have already delivered some reasons in this matter, dated 23 November 2017, and these reasons should be read with those.  Following the publication of the family report in this matter on 16 March 2018, the case was listed for hearing yesterday of an interim application by the father that the live-with and time arrangements for [X] be altered pending trial.  The father sought an order that [X] live with him rather than with the mother, where he is living now.

3. The basis for the application of the father is the observations and opinions expressed by Dr E in the family report.  I will summarise what is a detailed report covering many complex issues and the fact that I give a summary is not to be taken as indicating that I have not carefully read the whole of the report and, indeed, all of the reports relied on so far.

4. The opinion expressed by Dr E, and the observations she recorded, are to be seen in the context of reports relied on by the mother from Dr A to whom I have previously referred in the reasons of 23 November.  Dr A’s opinion was that the incident at [X]’s school in November 2017 which resulted in [X]’s time with the father being suspended was the result of [X]’s fear of resuming time with the father. She recorded that as a result of that, [X] had expressed threats of suicide to her and others.  As I have mentioned, the result of that report was an order for cessation of [X]’s time with his father.

5. In the observations recorded by Dr E – and I might observe in passing that the “Dr” part of Dr E’s pre-nominal represents a PhD in clinical psychology.  Dr E noted during the observations of [X] with his father and Ms C, the father’s partner, – and I quote from paragraph 112 of that report – were “warm and spontaneously affectionate” throughout the observation of interaction and therefore completely at odds with [X]’s purported fear of Mr Elstone as reported by the mother, the maternal grandmother and Dr A. 

6. She went on in the following paragraph to doubt, on the basis of her observations, the diagnoses of oppositional defiance disorder and attention-deficit/hyperactivity disorder with which [X] has apparently been diagnosed. 

7. On the other hand, her observation of [X] with the mother, and later with the maternal grandmother as well, were cause for concern.  She describes this at paragraph 114:  “Of concern during this assessment was not [X]’s behaviour with the father but [X]’s behaviour with the mother.  [X]’s behaviour in the observations of interactions with Ms Jarmin and the maternal grandparents was angry and defiant.  The mother’s demonstrated misattunement to [X], unwittingly or otherwise, seemed to provoke [X]’s anger rather than help him manage his feelings. This assessment suggested that there were significant issues in [X]’s relationship with the mother.  Ms Jarmin was demonstrably unable to sensitively attune to [X] or appropriately respond to his emotional needs.  It is noted that Ms Jarmin admitted to robotic parenting and a sense of detachment from [X] in his infancy.”

8. Within this context, [X] was injured as a young infant.  That is a reference to an episode in 2013 when, following an investigation by the child welfare authorities and medical authorities, [X] was observed to have suffered a spiral fracture of his arm.  He was about 18 months old at the time. There was evidence of other injuries of varying age.  The result of that was that [X] was taken into the care of the Minister for 12 months and then subsequently at the end of that time returned to his mother’s care.  During that period, I might add, he was placed in the care of the maternal grandmother, and the mother lived, as I understand it, in the same house during that period.

9. But to return to paragraph 114 of Dr E’s assessment, “Ms Jarmin demonstrated an inability to empathise with [X] or assist him to regulate his emotions, both of which are key parenting skills which underpin sensitive parenting capacity.  Sensitive parenting is a critical element in the development of a secure parent/child relationship.  In this assessment, [X] was observably emotionally distressed and dysregulated when interacting with his mother and the maternal grandparents.  Despite the earlier report by Connecting Families [there is a reference to a report by Ms P dated 4 July 2014 which I have not seen] it does not seem that Ms Jarmin has developed an ability to empathise with [X] or respond appropriately to his needs.”

10. This observation led Dr E to summarise the problem as follows:

    [X] appears to behave in two completely opposing ways with each parent and this appears to be related to the quality of the relationship he has with each parent.  The question before the Court is how long [X] can sustain this divided sense of self before it becomes firmly entrenched in his personality.  At the age of six the family consultant was of the view that unless significant changes occurred in the mother’s relationship with [X] immediately [X]’s emotional, social, cognitive and physical development is likely to be further compromised.

    The Court may need to consider which parent is better able to offer [X] an optimal environment in which to develop.  It appears that despite her efforts, the mother has struggled to provide an emotional environment conducive to support [X]’s global development.  Conversely, it appears that despite the father’s disrupted opportunities to build his relationship with [X], he has demonstrable (sic) skills in providing an emotional atmosphere to which [X] is positively responsive.

11. Counsel for the mother mounted a spirited attack on Dr E’s report and he suggested methodological deficiencies and bias.  The mother also relied on a further report from Dr A which attacked Dr E’s methodology.  Dr A did not resile from her earlier opinion that the child was afraid of the father and that there should be no time provided, notwithstanding that she had apparently carefully read Dr E’s report and criticised it.

12. The mother also relied on a report from a psychologist.  I might say that Dr A is not a psychologist.  She has other qualifications.  As I said, the mother also relied on a report from a psychologist, a Ms S, who the mother has consulted or is consulting. Some aspects of Ms S’s report corroborate Dr E’s view, in my opinion.  Some of Dr E’s opinions about the mother’s lack of emotional attunement and lack of empathy appear to be referred to by Ms S.  However, Ms S cautioned against any abrupt change in [X]’s present circumstances, although she recommended a resumption of time with the father.

13. Ultimately, this was the position taken by the mother.  She did not oppose a resumption of time between [X] and the father, a position that seems to me to be at odds with her earlier reliance on reports from Dr A.  The mother’s change in position was not adequately explained in my view.  Dr E expressed the opinion that the mother’s skills were deficient in comparison to the father’s parenting skills and, as I have indicated, she suggested a reconsideration or a consideration of whether present arrangements were in the child’s best interests.

14. I am satisfied that a reconsideration of these arrangements is necessary.  However, in an interim hearing, I feel that it would be inappropriate to make such a dramatic change when there is such a divergence of opinion between Dr E, in particular, and Dr A.  It would appear to me that the weight to be given to the competing opinions is a matter for trial.  As I expect to be able to hear this matter in less than four months time, I do not propose to make the orders for change of residence sought today by the father. However, I will make orders for resumption of [X]’s time with the father. The present regime, or the suspended regime reflecting the consent orders from last year, is an alternative weekend arrangement and there will be a return to that.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 9 May 2018