Findlay and Lyons
[2016] FamCA 709
•26 August 2016
FAMILY COURT OF AUSTRALIA
| FINDLAY & LYONS | [2016] FamCA 709 |
| FAMILY LAW – CHILDREN – Final parenting – With whom the child lives – With whom the child spends time – Parental responsibility – Best interests of the child – Where the mother is the child’s primary attachment figure – Where allegations made of child abuse perpetrated by the father – Child’s relationship with the father’s substantially interrupted –Where the Court is not satisfied that there has been abuse of the child or family violence – At trial the mother conceded there was no unacceptable risk of harm to the child spending time with the father – Previous orders for therapeutic intervention – Risk of psychological harm arising from the mother’s anxiety and personality issues – Arrangements for child’s time with the father and ongoing therapy to assist the mother in this regard and obviate uncertainties for the child – Presumption of equal shared parental responsibility not rebutted. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA |
| Goode & Goode[2006] FamCA 1346 |
| APPLICANT: | Mr Findlay |
| RESPONDENT: | Ms Lyons |
| INDEPENDENT CHILDREN’S LAWYER: | S P Nasti & Co Solicitors |
| FILE NUMBER: | PAC | 4464 | of | 2011 |
| DATE DELIVERED: | 26 August 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 21, 22 and 23 October 2015 and 26, 27, 28 and 29 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Rosic |
| SOLICITOR FOR THE APPLICANT: | Claremont Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Snelling |
| SOLICITOR FOR THE RESPONDENT: | Benetatos White Solicitors |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | S P Nasti & Co Solicitors |
Orders
That the father Mr Findlay and the mother Ms Lyons have equal shared parental responsibility for the child X Findlay-Lyons born … 2007.
That the child live with the mother.
That the child spend time with the father as agreed between the mother and father in writing with such writing to include email or SMS communication and in default of agreement as follows:
(a) For a period of three months from the date of these orders each Sunday from 9.00 am to 5.00 pm;
(b) Thereafter for a period of three months each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday;
(c) Thereafter until the conclusion of the child’s school term one in 2017 each alternate weekend from after school Friday (or if not a school day from 4.00 pm Friday) to 5.00 pm Sunday;
(d) During the term one school holidays in 2017 for a period of four consecutive nights commencing at 9.00 am on the midpoint Saturday of that school holiday period and concluding at 5.00 pm on the following Wednesday;
(e) From the commencement of the child’s school term two in 2017 and thereafter each alternate weekend during school term from after school Friday until before school Monday;
(f) Commencing in the term two school holidays in 2017 and thereafter during mid-year school holiday periods for a period of seven nights in each of such school holiday periods commencing at 9.00 am on the middle Sunday of such holiday periods and concluding at 5.00 pm on the following Sunday;
(g) Commencing in the Christmas school holiday period 2017/2018 for a period of two consecutive weeks as agreed between the mother and father in writing with such writing to include email or SMS communication and in the absence of agreement commencing at 9.00 am on the first Saturday in January each year and concluding at 5.00 pm on the Sunday two weeks thereafter;
(h) In each alternate year commencing 2016 from 2.00 pm Christmas Day until 5.00 pm Boxing Day and in each alternate year commencing 2017 from 12 noon Christmas Eve until 2.00 pm Christmas Day;
(i) On the Father’s Day weekend commencing in 2017 if the child is not otherwise spending time with the father from after school Friday until 5.00 pm Sunday provided always that the father’s time with the child is suspended on the Mother’s Day weekend;
(j) That otherwise the father shall be entitled to attend on such occasions as are relevant to the welfare of the child including occasions relating to the child’s education, religious education, sporting activities and any other extra-curricular activities, whether organised by the mother or otherwise, where the attendance of either or both parents is to be reasonably expected.
That for the purposes of changeovers where not otherwise provided for at school such changeovers shall take place at the home of the maternal grandmother Ms Y at Town Z, New South Wales or as otherwise agreed between the mother and father in writing with such writing to include email or SMS communication provided always that for the purposes of such changeovers for a period of six calendar months from the date of these orders the mother is restrained from being in attendance at such changeovers and they shall be facilitated by the maternal grandmother.
That the mother shall do all things necessary so as to facilitate the father having reasonable telephone or other electronic communication with the child at times when the child is residing with her as agreed between the mother and father in writing with such writing to include email or SMS communication and in default of agreement each Tuesday and Thursday evening between 6.00 pm and 7.00 pm at which time the mother shall ensure that the child is available to receive a call or other communication from the father and during such call or communication the mother shall afford to the child reasonable privacy.
That the mother is restrained from engaging the child in any counselling, therapy, psychological or mental health intervention from any such health practitioner without the express consent of the father in writing or as may be recommended in writing by Dr V.
That the mother shall do all things necessary and sign all necessary documents and obtain all such mental health referrals as are necessary to continue her engagement in therapeutic intervention with Ms B, psychologist of Town A and do all things necessary to obey all reasonable directions of Ms B as to ongoing therapy or counselling or engagement with any other mental health or therapeutic professional as is recommended or directed by Ms B.
That the mother and father shall do all things necessary and sign all necessary documents and obtain all such mental health referrals as are necessary to continue their engagement in therapeutic intervention with Dr V and do all things necessary to obey all reasonable directions of Dr V including but not limited to the attendance of the child upon Dr V as directed by her and any directions for both or either of them to engage with any other mental health or therapeutic professional and for the purposes of such therapeutic intervention the mother shall pay any fees payable for her individual appointments, the father shall pay any fee payable for his individual appointments and the mother and father shall pay equally for any joint appointment or any individual appointment for the child.
That the Independent Children’s Lawyer have leave to provide a copy of these orders together with a copy of the Reasons for Judgment to Ms B and to Dr V.
That the mother and father are restrained from denigrating the other or members of the other’s family or from discussing these proceedings in the presence or hearing of the child or from permitting any other person to do so.
That the mother and father are restrained from showing to the child any document filed in or obtained in connection with these proceedings.
That the mother and father shall promptly inform the other should the child suffer from any serious illness or injury necessitating medical or hospital treatment in a timely manner and in such a manner so it is possible to facilitate the other attending upon such medical or hospital treatment for the child.
That the mother and father shall do all things necessary to keep the other informed at all times of their respective residential addresses, landline telephone numbers if any and mobile telephone numbers and inform the other of any change thereto within 24 hours of any such change.
That the mother shall do all necessary things so as to cause the child to attend upon the Independent Children’s Lawyer within seven days from the date of these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Findlay & Lyons has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4464 of 2011
| Mr Findlay |
Applicant
And
| Ms Lyons |
Respondent
REASONS FOR JUDGMENT
On 15 November 2011 final parenting orders were made in the then Federal Magistrates Court of Australia by consent in relation to the subject child X born in 2007. The child was then not yet five years of age.
In substance the orders made provided that:
a)The mother and father have equal shared parental responsibility for the child;
b)That the child live with the mother; and
c)That the father spend defined time with the child on a regular basis including three weekends out of four, special days and time during school holidays.
The path of the current litigation
The current proceedings in relation to the child were commenced by the father in January 2014, just over two years after the making of the final consent orders.
The father commenced the fresh proceedings in the Federal Circuit Court of Australia. On 5 March 2014 an Independent Children’s Lawyer (“ICL”) was appointed to represent the interests of the child.
The father’s application sought parenting orders in relation to the child on a final basis that in summary provided for:
a)The mother and father to have equal shared parental responsibility for the child;
b)That the child live with the mother; and
c)That the child spend time with the father including alternate weekends during school term and half school holidays together with time on special occasions.
The father’s application sought interim orders in the same terms.
The mother filed a response to the father’s application in March 2014 seeking orders that provided:
a)That previous parenting orders made on 15 November 2011 be dismissed (sic);
b)That the mother have sole parental responsibility for the child;
c)That the child live with the mother;
d)Other specific issues orders as to keeping the father informed as to her residential address and contact telephone number, notifying each other of any medical emergency in relation to the child, providing copies of school reports and other records to the father, that the mother not change her residential address without giving to the father appropriate notice and that the mother provide to the father notice of any intended overseas travel and that the mother retain the child’s passport.
The mother’s response made no provision for the child to spend time with the father.
Proceedings were listed for interim hearing on 24 April 2014 and on 28 April 2014 Judge Stewart in the Federal Circuit Court of Australia made orders pending further order that provided for:
a)Previous orders in relation to the child be suspended;
b)That the father spend time with the child on a supervised basis at the C Contact Service;
c)That the mother inform the father of the names of any doctors, counsellors or other treating health professionals consulted in relation to the child;
d)That the mother and father be restrained from denigrating, belittling or criticising the other parent or significant others in the child’s life to or in the presence of the child; and
e)That proceedings be transferred to this Court.
Proceedings were listed before a Registrar in this Court on 14 May 2014 subsequent to the transfer and subsequently on 30 May 2014 further orders were made by consent that provided for the appointment of Mr P, psychologist, to prepare a Single Expert report for the Court. The Single Expert report from Mr P was released to the parties on 28 August 2014 (Exh E).
In the context of the background of this matter as at the time of the report and more fully discussed below Mr P recommended that the child’s time with the father be at a minimum frequency as per the orders sought by the father.
Mr P was not required for cross examination at the trial.
On 17 October 2014 it was noted by a registrar that the child was shortly thereafter to participate in a JIRT interview in relation to alleged abuse. On 20 October 2014 a report was requested from the Department of Family and Community Services as to that Department’s engagement with the child and the Department was requested to intervene in the proceedings.
On 28 November 2014 trial directions were made to facilitate the matter proceeding to trial for three days not before 16 March 2015. It was noted that as yet the Departmental report had not been received. Subsequently on 10 December 2014 the Departmental report was released to the parties.
Proceedings were listed before the Court on 6 May 2015 for judicial case management. On that day by consent it was ordered that the parents and the child participate in family therapy with Dr V particularly as to the relationship between the child and the father. Proceedings were adjourned for hearing commencing 21 October 2015 allocating three days for trial.
The parties’ proposals
At the commencement of trial the father in his case outline (Exh A) sought orders in the alternative that in summary provided for:
a)The mother and father to have equal shared parental responsibility for the child; and
b)For the child to live with the mother and for the child to spend time with the father on alternate weekends during school term and half school holidays and other specific days;
or:
a)That the father have sole parental responsibility for the child; and
b)That the child live with the father and that the child spend time with the mother with such time to be suspended for the first three months and thereafter for a period of three months at a children’s contact centre and thereafter alternate weekends during school term and half school holidays and other specific days.
The father lives with his partner Ms M and their two children on his parents’ property at Suburb V, north west of Sydney, in a separate two bedroom portable dwelling. He pays rent to his parents. He works as a technician for his parents’ business. His residence is about 45 minutes from the child’s school. He has extended family support.
The mother at the commencement of the trial sought orders in her case outline (Exh B) consistent with her response filed in March 2014 with those orders referred to above and that provide for the child to spend no time with the father.
Understandably having regard to significant evidentiary issues the ICL reserved his position.
The father at trial relied upon:
a)His affidavit filed on 16 September 2015;
b)The affidavit of the paternal grandmother Ms F filed on 26 February 2015; and
c)The affidavit of his partner Ms M filed on 27 February 2015.
The mother at trial relied upon:
a)Her affidavit filed on 24 March 2014;
b)Her affidavit filed on 27 April 2015;
c)The affidavit of the maternal grandmother Ms Y filed 9 October 2015; and
d)The affidavit of Mr E filed 9 October 2015.
The hearing
The hearing proceeded on 21, 22 and 23 October 2015. At the conclusion of evidence on the third day there was some discussion between the parties and further orders were made by consent that provided for a Single Expert report to be obtained from Dr R with proceedings adjourned part heard to Tuesday, 26 April 2016 allocating a further four days for hearing. Otherwise the mother was restrained from engaging the child in any other form of therapeutic intervention, counselling or psychological intervention without the written consent of the ICL or as otherwise recommended by Dr V.
Subsequently on 3 March 2016 the Single Expert’s report from Dr R was released to the parties.
The hearing resumed on 26, 27 and 28 April 2016.
At the resumption of hearing the mother provided an amended minute of orders sought by her that provided for her to have sole parental responsibility, the child to live with her and the parties and child to engage in family therapy with Dr V with the father’s time with the child in substance to be determined by Dr V.
On 28 April 2016 the Single Expert Dr R gave oral evidence.
On 28 April 2016 orders were made by consent as follows:
1.That the child [X Findlay-Lyons] born on … 2007 (hereinafter referred to as “the child”) shall live with the Mother.
2. That the child shall spend time with the Father as follows:
(a) On Saturday, 30 April 2016, from 10:00am until 3:00pm;
(b)Thereafter, each Sunday from 10:00am until 3:00pm, commencing 8 May 2016.
(c)That the Father’s time shall be substantially in the presence of Ms [F] and/or Ms [M].
3.That for the purpose of changeover, it shall take place at [Ms Y’s] residence situated at [Town A] NSW ... That the Mother shall not be present during changeover and that Ms [Y] shall facilitate these changeovers.
4.That the parties shall communicate with each other by way of email and/or SMS text message.
5.That the Mother shall use her best endeavours to continue engaging in therapy with Ms [B] (hereinafter referred to as “Ms [B]”).
6.That the Independent Children’s Lawyers shall be granted leave to provide a copy of the Expert Report of Dr [R] dated 29 February 2016 (hereinafter referred to as “the said Report”) to Ms [B].
7.That the father shall be granted leave to provide a copy of the said Report to his therapist, to which he intends to engage in the near future.
IT IS FURTHER ORDERED THAT:
8.The proceedings are adjourned part heard to not before 10.30am 29 April 2016.
9.The mother shall do all things necessary to make the child available with the Independent Children’s Lawyer on Friday 29 April 2016 at such time and place as arranged by the Independent Children’s Lawyer.
NOTATION:
A.The Court notes that Ms [M] is 40 weeks pregnant and is about to have a second child and if in circumstances where the birth of the child renders the Father being unable to attend the visitation, then the Father shall telephone Ms [Y] and inform her accordingly.
On 29 April 2016 the hearing concluded with submissions. By reason of the orders made the previous day it was agreed that judgment would not be formally reserved until the expiration of three months from that date so as to permit the further interim orders made the previous day to be implemented for a period and to allow the parties to consider whether they could reach agreement as to final orders. It is to be inferred that absent any further submissions that the interim orders made on 28 April 2016 have continued to operate to date.
Notwithstanding there being a concession by the mother late in the trial that there was no unacceptable risk to the child in the child spending time with the father it is appropriate that the factual background be the subject of determination by the court so as to provide a clear backdrop to orders to be made and more importantly to avoid the spectre of future litigation that again raises the issue of unresolved historical circumstances.
Circumstances leading to November 2011 Orders
The father at time of trial was aged 31 as was the mother.
The subject child is the only child of their relationship.
The father and mother commenced their relationship in early 2006 and after about six months the mother announced that she was pregnant.
The parties’ early relationship was, it appears, fraught with difficulties with both parties making much of the issues in the context of this further parenting application.
In 2009 the father commenced a relationship with his now partner Ms M.
In 2011 following an argument between the mother and father an apprehended violence order was sought against the father with the application subsequently being dismissed and an order for costs being made against the police. The mother conceding in oral evidence that she had lied to the police in giving her statement of complaint.
Regrettably the father did not see the child for about six months during these proceedings.
Difficulties continued in relation to the father’s time with the child and in November 2011 the father and mother were able to reach agreement at mediation. That agreement was embodied in final parenting orders made by consent on 10 November 2011 as referred to above. The father thereafter resumed time with the child.
However the early issues were subsumed in the consent orders of November 2011 and have little relevance in the context of the present application. The mother acknowledges that at the time of the orders she was satisfied that the child was safe with the father, although their communication was poor and at times confrontational.
Subsequent events
Notwithstanding the orders made on 10 November 2011 difficulties continued between the parties with the mother alleging that the child complained about not being fed properly or adequately when spending time with the father, that the child further complained about the father’s conduct and language when with him, and that the child exhibited adverse behaviours after spending time with the father including bedwetting. The mother asserts that in about June 2012 the child became reluctant to have baths and showers and at that time expressed a reluctance to spend time with the father in particular as when spending overnight time with the father he had to sleep on the couch.
It is readily apparent that their relationship was confrontational and that they both exhibited little capacity for co-parenting the child.
In mid-May 2012 the father expressed to the mother his concerns that the child appeared in a Facebook film clip in which the mother appeared naked that was inappropriate. The mother had not sought the father’s permission for the child to appear in the film clip.
The relationship between the father and mother became problematic and the father’s time with the child did not progress to the three weekends out of four provided for in the then current orders but the father continued to spend time with the child each second weekend from Friday to Sunday from November 2011. The mother and father varied arrangements from time to time to suit their convenience, although the mother asserts difficulties with getting the child to go with the father from about August 2013.
Regular arrangements in relation to the father’s time with the child continued to deteriorate as did the father’s relationship with the mother.
In September 2013 the father and his partner informed the child that they were expecting a baby. It was, it appears coincidentally, at this time that the mother alleges that child commenced to express even stronger views about not spending time with the father.
The mother’s engagement of Ms U
The mother thereafter, on obtaining a referral from the child’s general practitioner dated 6 December 2013, engaged the child with Ms U, psychologist, in Town A. However the first appointment did not take place until after the mother had made allegations that the child had been sexually abused by the father and child had been interviewed by the police.
Appointments commenced on 1 March 2014 and continued on a regular basis thereafter for about 12 months. The mother asserts in oral evidence one of the reasons was to try and repair the child’s relationship with the father, yet Ms U did not engage with the father. The mother admitted that after five sessions with nothing adverse from the child she had told him to “open up, to talk to her”. It is of note that, whilst not much of note occurred in early interviews with the child, in interview on 10 June 2014 with the mother seated behind the child he let out a tirade of complaint about the father, his girlfriend and his grandma and parroted again complaints about the father’s alleged behaviour. This notwithstanding the child having by this time told the police that he missed his dad. This interview was shortly before the child was to meet with the ICL and after the mother had made a complaint to the police in march 2014.
On 11 November 2013 the mother spoke to the child’s teacher (Exh R) who informed the mother that more recently the child had been exhibiting adverse behaviours at school. In response the mother informed the teacher that the father had, inter alia, a history of perpetrating sexual abuse on her and on an underage person. The mother further alleged that the child was being hit by the father. None of this had been the subject of any previous compliant by the mother and when confronted with her assertions in oral evidence she denied making them. Her denial is treated with great circumspection.
On or about 12 November 2013 the father received correspondence from the mother’s solicitor that among other things raised the issue of the child’s time with the father and the conduct of the father and his partner when the child is spending time with them.
In a conversation between the mother and father on 28 November 2013 the mother raised issues as to adverse behavioural changes she asserts she observed with the child and informed the father that the child would not be spending time with him.
The mother emailed the child’s school on 5 December 2013 (Exh R) to advise that the father, his girlfriend and the grandmother were not to collect the child from school, notwithstanding they never had or that there was any suggestion they would. She told the child and such knowledge it is to be assumed could only result in heightened anxiety for the child.
Thereafter the mother was in regular communication with the school either in person or by email (Exh R), many of the communications reflecting her heightened anxiety in relation to the child. In June 2015 the mother unilaterally changed the child’s school as a consequence of alleged bullying.
Dr V: late 2014
The mother by this time had proposed to further engage the child in therapy with Dr V, psychologist without the father’s consent. Prior to this she had taken no proactive steps to seek assistance in the circumstances she asserts were unfolding.
The mother’s meeting with Dr V on 10 December 2013 was cancelled but she met with the therapist on 21 January 2014 and again on 7 February 2014. In interview the mother accused the father of “taking drugs…having a relationship with a male friend...being quite abusive to [the child]”. She further accused him of “physical assaults on her in the presence of the child and of being quite vicious … using the child to get to her”. She further accused him of inadequate care of the child.
The father met with Dr V on 3 February 2014. It is apparent from the therapist’s notes (Exh H) that the mother engaged the child in her issues with the father, the child reporting what he had been told by the mother to the therapist and also reporting “Daddy punched Mummy in bean bag and Mummy punched Daddy in the face and scratched”.
On 17 December 2013 the mother and father attended mediation and reached agreement that the child would recommence spending time with the father on Christmas Day from 1.00 pm to 7.30 pm and each Sunday from 10.00 am to 1.00 pm as an interim arrangement. The first Sunday occurred on 22 December 2013.
However the relationship between the mother and father continued to deteriorate particularly as the mother took objection to the presence of the father’s partner at changeovers and at times when he spent time with the child.
On 16 January 2014 in the context of his deteriorating relationship with the child the father commenced the present proceedings. The mother was served shortly thereafter.
The father’s time with the child ceased on 9 February 2014 as discussed below.
The child’s alleged disclosures February 2014 and thereafter
Shortly after being served with the father’s application and on 10 February 2014 the mother asserts that the child made certain disclosures to her at the dinner table about the father having a hairy bum and hairy penis and asserting that he and his father shower together. The following conversation then took place:
Mother: you don’t touch daddy’s penis, do you?
Child: no
Mother: and daddy doesn’t touch you either does he?
Child: yes but only to wash it off… You don’t know what it feels like mummy because you don’t have a penis.
On 11 February 2014 the mother it appears without prompting then engaged the child in a conversation as to the same subject. The mother thereafter engaged the child in a long conversation that caused the mother to conclude that the child had seen the father masturbating and that the child had indeed been masturbated by the father. The mother thereafter reported the matter to the Department of Family and Community Services.
The child was interviewed by the police on 14 February 2014 (Exh I) during which the child when asked what he liked about his father said “he’s very nice to me”.
Concerningly, at trial the mother said that she had not read the records of the child’s interviews, nor had she been told what was in them including the explanations offered to the police by the father as to the context of the child’s statements.
On 17 February 2014 the father was contacted by a detective in relation to an investigation relating to the child.
On 19 February 2014 the detective and a case worker from the Department of Family and Community Services attended at the father’s home. The father was informed that there were allegations about him touching the child’s penis in the shower and inspecting the child’s penis in the living room. The father was informed that the child had been interviewed. The father explained to the detective and the case worker the way he washed the child and other aspects of his day-to-day care of the child and also the history of ongoing difficulties between himself and the mother. To the father’s surprise the case worker informed the father that whilst being interviewed the child had expressed a wish to spend more time with the father. The father was informed shortly thereafter that the complaint was not being pursued.
The mother thereafter contacted the police about the outcome of the first interview, telling them that the child had told his teacher “he had not told everything” (Exh I). She caused a second interview of the child to take place on 24 February 2014. After this second interview the mother was informed that “we do not have enough evidence to cause us to act. He (the child) is just not giving anything away”. This appears a somewhat surprising result having regard to the mother’s detailed assertions in relation to her alleged conversations with the child.
That night, the evening of 24 February 2014 the mother asserts that “the child made further disclosures to me”. Conveniently it appears this further disclosure was in the presence of her then boyfriend Mr E. Mr E gave oral evidence that was supportive of the mother. He was clearly significantly engaged in the issue of the child’s time with father. He maintains some ongoing relationship with the mother. Yet overall his oral evidence left the court with the impression that he was prepared to support the mother at the cost of an accurate reflection of the true circumstances. His evidence is regarded as having little weight.
On 25 February 2014 the child informed the mother that he had told his teacher about “daddy had been touching my penis and that is why I missed school yesterday”. Yet the mother had in fact presented the child for a second interview that day and the child had not seen the father for several weeks.
The mother contacted the child’s teacher who informed the mother that as a mandatory reporter she would report the matter. On 17 March 2014 the mother attended at the A Police Station and made a record of interview as to her allegations.
On 18 March 2014 the father spoke to Dr V who informed him that the mother had failed to make any follow-up appointments. The father was also informed that the mother had made no mention of the allegations as to the father’s alleged conduct.
On 28 April 2014 orders were made as referred to above for the child to spend supervised time with the father at a contact service. Subsequently the contact service was not able to provide supervised contact for some months during which the father spent no time with the child.
The child had commenced with Ms U in March 2014 and as a consequence of the child’s assertions in interview on the June 2014, referred to above, Ms U made a notification to the Department.
In September 2014 the mother remained engaged with the JIRT officers who she says suggested that the child’s time with the father not resume until after investigations had been completed. It appears that she subsequently communicated this to the contact centre staff asking that the commencement of time be postponed.
The mother spoke to Ms U on 6 September 2014 about a forthcoming third JIRT interview, telling Ms U that the child was nervous about the further interview. The mother requested that Ms U see the child shortly before the interview to which Ms U sensibly responded that perhaps afterwards should be considered. The mother again spoke to Ms U on 2 October 2014 about the approaching JIRT interview. Ms U encouraged the child at the interview to tell the truth and not be embarrassed.
On 17 October 2014 the father was to attend the contact service for his intake assessment but was advised by the service that the appointment was cancelled as the centre had been advised that there were current investigations in relation to further allegations relating to the child.
On 28 October 2014 the child was interviewed again for a third time by JIRT officers. That morning the mother presented the child to Ms U again primarily to discuss the pending interview, she already having done so on 2 October 2014.
On 29 October 2014 the father was informed by the investigating officer that on interviewing the child there were no disclosures and that as far as the police were concerned the matter was closed.
On 12 November 2014 the child and mother were seen together by Ms U who noted: “he seemed unable to generate ideas and we relied on his mother’s thoughts though [the child] did not seem to agree that these things were true of him”.
Thereafter the father was able to attend at the contact centre for intake interviews on 21 November 2014. At that time the father expressed concerns to contact centre staff that the mother may have coached the child into saying that he would not wish to spend time with the father.
Then on 28 November 2014 the mother presented the child again to Ms U who saw them both together.
On about 14 December 2014, after the mother had presented the child at the contact centre for an intake interview, the father was later informed by contact centre staff that the child was reluctant to see him and that the contact centre was refusing to supervise time.
The mother presented the child again to Ms U on 17 December 2014. The child’s reluctance to see the father was evident.
In correspondence from the father’s solicitors to the mother’s solicitors on 16 December 2014 concern was expressed that the mother was doing everything possible to alienate the child from the father and informing the mother’s solicitors that should circumstances continue the father would seek an order that the child reside with him. There was no response from the mother’s solicitor and on 12 January 2015 the father’s solicitor proposed that there be further therapeutic intervention to assist with the child’s relationship with the father. Again there was no response from the mother’s solicitor.
The mother again presented the child to Ms U on 31 January 2015. Again they were seen together. The mother reported that the child’s behaviour had deteriorated “extreme emotional states: disobedience, crying, expressing angry and aggressive feelings towards his father”. This notwithstanding the child had no contact with the father for a considerable time. It was suggested that the child may suffer from ADHD. An ongoing mental health referral for the child was then issued dated 26 February 2015.
By this time the child, now aged almost eight and had spent no time with the father for almost a year. This notwithstanding the mother in oral evidence acknowledging the importance of the child’s relationship with the father, but she was acceding to her perception as to the child’s wishes. The mother otherwise acknowledged in oral evidence that the child had a good relationship with the paternal grandparents but she had made no effort to promote that relationship.
The mother presented the child again to Ms U on 23 February 2015 and again on 14 March 2015 when the mother introduced the possibility that the child was being bullied at school which was confirmed on interview on 28 March 2015. The mother was of the view that the bullying was making it difficult for the child to cope with feelings about his father. The child on solo interview did not mention his father.
Dr V: mid-2015 and thereafter
Orders were made on 6 May 2015 by consent for therapeutic intervention by Dr V. Notwithstanding the orders for family therapy the mother presented the child to Ms U on 9 May 2015 and then again on 23 May 2015 where it was reported that the child was more settled but still experiencing difficulties at school.
The mother spoke to the child before interview with Dr V telling him: “it’s not my choice…it will be safe” (Exh G).
The father attended upon Dr V on 10 June 2015 expressing his concerns as to mother’s systematic attempt to alienate the child from him.
The child attended with the mother on 28 July 2015, 8 October 2015 and the mother having cancelled an appointment on 2 December 2016 again on the 20 January 2016 (Exhs F and O). The child told Dr V that he thought the purpose of the meeting was “getting Daddy away, so Daddy goes away”. He did not like his father because he yells at him and “touched his private parts”.
The mother repeated to Dr V her allegations of violence at the hands of the father. She asserted that “as counselling unfurled it became evident that [the child] was subject to emotional, physical and sexual abuse in his father’s household”. The mother informed Dr V emphatically that she would not cooperate with any therapy that “indulged the father” and exposed the child to trauma. The mother conceded that at interview she was “hysterical and crying”. The mother told Dr V on 20 January 2016 that she was convinced that the child had been sexually assaulted. She continued to say that she was the child’s “advocate”. Of note is that when seen alone that same day the child said to Dr V “can you help me….learned from [Ms U] about being safe…not that worried about seeing him (the father)”. The child expressed curiosity as to his half sibling T.
The mother and child attended again on Dr V on 5 February 2016 informing her that she had researched the Single Expert Dr R and believed he was father-biased. On interview that day the child, surprisingly after his statements only two weeks before and after seeing the father in interview with the Single Expert on 1 December 2015, told Dr V that the father “yells, screams and smacks me…gives me yucky food”.
Dr V saw the father and the child together on 26 February 2016. She observed “[The child] and father interacted well…father respectful…did not crowd [the child]…lots of interests in common…spoke about [Ms M] and [T]…[the child] curious about [T]”. The mother on the report from Dr V was “disbelieving that interaction went well”.
The mother’s disbelief was alarmingly reflected in the child’s next presentation to Dr V just three weeks later on 21 March 2016. The child said he didn’t want to see Dad, I’m scared of him… he touched my private parts”. On the father entering the room the child accused the father of “having sex with another woman and having children”. He said to the father “I hate you…I don’t want to see you”. After this preliminary outburst almost as if scripted by someone else Dr V observed that the child “seemed to settle…good and healthy discussion around times enjoyed together.” The father and the child spoke about family and school, the meeting ending on a positive note. On report to the mother Dr V observed a frown on her face and the mother commented that she could see how upset the child was.
The father and child were seen again by Dr V on 19 April 2016. Initially the child was reluctant to see the father. Surprisingly the mother had permitted the child to bring a toy telephone, the child saying it was because when spending time with the father he did not let him call the mother. In observation the father and child interacted well. The child enquiring of the father’s expected new baby and they speaking enthusiastically. When the father said he hoped that the child would meet T soon, the child said “I don’t want to come and see you...because you pulled my doodle...after having a bath and shower”. The father reassured the child that such touching was not of a sexual nature and that the child was not a liar. They spoke of the child’s nightmares in which the child revealed his fear that he would be taken away from his mother and he would never see her again. The father spoke of a slow introduction of time with the child suggesting a Community Centre. Dr V noted that the conversation was free flowing in spite of the difficulties of the issues discussed.
Overall the mother and child’s presentation to Dr V is supportive of the conclusion that the mother has repeatedly engaged the child in discussions as to the allegations and concerns raised by her, each time renewing the child’s anxieties about the father. The mother’s conduct gave the impression of being insidious and designed to fracture any prospect of the child having a relationship with the father.
The Single Expert report: Dr R
During the currency of the child’s engagement with Dr V and before the resumed hearing the report of the Single Expert was released to the parties on 3 March 2016.
The Single Expert’s recommendations are couched as follows:
Possible Outcomes
Should the child not have contact with the father or have restricted supervised contact it is likely that he will lose the relationship and that this would be an extremely distressing outcome for the child. This would be a very tragic outcome for the child. I believe that [the child] is suffering a great deal. He is also worried about not having a relationship with his half-brother and his paternal grandparents. I believe that a breakdown in the relationship and loss of that relationship between [the child] and the father would be extremely damaging to his self-esteem and self-concept. It could predispose him to difficulties in his later life and possible personality problems through this great sense of loss and injustice. He also risks being damaged by believing that his father is an evil person.
Should the child have contact introduced with the father. I believe that he would quickly resume a relationship with his father as there is still a clear attachment. I don’t believe that he would have any problems relating to the father. Once a normal relationship has been restored he would quickly forget about the sexual abuse issues if this issue is left alone and if there is healthy restoration of his other relationships.
Should the child be placed with the father I believe that this would initially be a worry for the child. [The child] would have concerns about his mother and be frightened about her welfare and whether he would get to see her. If he resided with the father and had regular contact with the mother I believe that he is resilient enough to adjust to this and would be able to make the transition successfully. He would be, I believe well cared for by the father. He would also have a close potential relationship with his younger sibling, [T]. There are no particular concerns that I am aware of in relation to [the father’s partner]. It was reported that she had a good relationship with [the child]. Overall, a placement with the father where there is regular contact with the mother is a potential positive outcome.
Recommendations
I believe the best outcome would be for the child to probably remain in the care of the mother. He does have a secure attachment with her. I believe that she is a capable person. I am worried about her personality difficulties but overall she does have strengths and I believe does want to support a relationship between the child and the father as long as she can be given firm enough direction and reassurance.
On balance, I believe that the sexual abuse allegations and concerns from the mother have been driven by her insecurities and anxiety and that these are spurious in nature. I don’t believe there was malicious intent that the mother’s difficulty managing anxiety has been a major problem. Overall, I do believe that the best outcome would be for the child to be able to stay with the mother and have regular contact with the father.
I recommend that contact with the father be introduced in a gradual way. I would recommend that it should commence at perhaps 4 hours accompanied contact for 3 months once a week. Then this should increase to day time contact for 3 months and increased full fortnightly weekend contact. Contact should be from Friday afternoon until Monday morning. I believe that the father is a capable caring parent and that he can provide well for the child.
I recommend that neither parent denigrate the other parent in front of the child.
I recommend that both parents have some respective individual counselling to help them deal with their situation.
I recommend that they have some robust counselling. It may be that with the help of the judgement and my report that some counselling in order to enable a contact to occur and for the mother to ensure that the contact occurs. I do believe the child is strongly attached enough to the father to be able to cope well with contact with him if that six-month transition occurs.
I recommend that the mother needs to undergo some assistance with clinical psychology for her anxiety levels and her coping ability. She would benefit from a combination of different treatments of cognitive behavioural therapy, dialectical behaviour therapy and acceptance and commitment therapy. She also may benefit from some interpersonal therapy to help her come to terms with the fears of males in her life.
Counselling for the child to deal with sexual abuse or trauma from the father should cease as it is counter-productive. The therapy for the child with a child psychologist would need to be focused and dealing with separation anxiety from the mother.
Should the mother be unable to overcome her anxiety and continue to question the child and undermine the child’s relationship with the father even inadvertently, she is likely to do him significant harm. In addition if the mother is unable to support a relationship between the child and the father I would have concerns about the child remaining in the primary care of the mother. This would suggest that perhaps her personality difficulties are more significant than I have judged and in fact she may indeed have a personality disorder and be unable to adapt to act in the child’s best interests. Under these circumstances I would recommend a change of residence to the father and for there to be regular contact with the mother, on a fortnightly weekend basis.
I don’t have a firm position on parental responsibility as shared parental responsibility may be preferred if the mother retain’s (sic) residence however if the father is granted primary residence it may be not possible for shared parental responsibility.
Concerningly in the Single Expert’s report, Dr R provides an overview of the mother’s mental health in the following terms:
[The mother] has not had any serious problems with anxiety or depression during her life. There is no evidence of history of psychosis. She is probably had mild depression and anxiety since teenage years that becomes exacerbated at times of stress. The birth pregnancy with [the child] was stressful as well as her back pain problems. [The mother] did get depressed when the relationship with [the father] broke down and she’s had some depression dealing with the problems with the family court.
In relation to her personality there was probably a stable enough attachment with her mother during the 1st few years of life. However, the disruption during her primary School formative years of developing self-esteem was quite significant. The learning problems and family disruption, fearfulness and many changes of school in residence, I believe impacted on her self-esteem development. She has deep-seated feelings of self-doubt and inferiority. I believe that this drive’s difficulties. For example she found it difficult to accept [the father’s] parents and interpreted their reactions is that they were ashamed of her and they didn’t like her and would humiliate her. I suspect her interpretation of [the father’s] parents echoed her concern about how others perceived her such a she experienced as a teenager when she felt teachers were humiliating her. I believe that she has carried this fear of humiliation and fear of being inferior throughout her life which has made it difficult for her to sustain relationships.
I believe that there are significant dependent personality difficulties. She is very dependent on her mother and probably quite dependent on peers. I suspect she was dependent on [the father] during their relationship but the conflict between them and the difficulty separating took a long time seemed to indicate that it was difficult for the 2 of them to let go of each other. She is very unsure about her judgement. She continually was asking what the right thing was.
I formed the view that she had a dependent personality style. I’m unsure at this point whether to refer it to a personality disorder as this diagnosis is a matter of degree and she does have strengths. She is able to work and she is talented in the areas of [artistic creativity]. However, I am concerned that she is becoming pathologically dependent on [the child] and that this could overwhelm him. If she is able to separate her own anxiety and dependency from [the child] that it may indicate a personality structure is more functional than it appears.
The resumed hearing
It was in the context of the ongoing engagement with Dr V and the release of the Single Expert report to the parties that the hearing resumed on 26 April 2016.
Prior to the recommencement of the hearing the mother provided an amended minute of orders sought by her as referred to above (Exh L). The shortcomings of the orders proposed by the mother are clearly indicative of the mother having significant difficulties in separating from the child. The mother’s proposal effectively devolved responsibility for any decision as to the father’s time with the child to a therapeutic clinician, with whom she previously had been adamant that she would not engage.
On the resumption of her oral evidence it was put to the mother that she was convinced that the child had been sexually assaulted by the father. Her response was to say “I was not there, I’m doing my best.” Yet she continued to disagree with the opinions of the first Single Expert Mr P and the second Single Expert Dr R and conceded that she had told the child that the father was a “liar”.
As to the prospect of her own anxiety affecting the child, the mother acknowledged that it could but she did not believe so. She conceded that the issues the subject of the litigation were causing her anxiety for which she had been referred to a psychologist, Ms B in Town A. Her mental health practitioner had not seen the Single Expert report of Dr R. The mental health referral to Ms B dated 4 April 2016 details a history including depression and a referral for “anxiety disorder”. A letter from Ms B of April 2016 reveals that the mother “expresses the injustice that she feels around how interviews are biased towards her ex-partner” (Exh U).
As to whether she could reassure the child about his relationship with the father, the mother replied to the cross-examiner “I’m not sure”.
Proceedings were stood down and upon resumption the mother provided to the Court a further amended a minute of orders sought by her (Exh N). In summary the mother proposed:
a)That the mother have sole parental responsibility for the child;
b)That the child live with the mother;
c)That the child spend time with the father, contemporaneously with undertaking family therapy:
i)Accompanied by the paternal grandmother for four hours each Sunday from 9.00 am to 1.00 pm for three months;
ii)Then for one day each Sunday from 9.00 am to 4.00 pm for three months;
iii)Then from 9.00 am Saturday to 4.00 pm Sunday each alternate weekend for a period of six months; and
iv)Thereafter from 4.00 pm Friday to 4.00 pm Sunday each alternate weekend
with changeovers to be effected at the maternal grandmother’s home.
d)That commencing in school holidays after 12 months the child spend a week with the father in the mid-year holidays and two weeks in the Christmas school holidays and specific times in the Christmas festive period; and
e)Otherwise the mother sought a raft of orders facilitating ongoing therapeutic intervention.
The father in his oral evidence acknowledged that a change of residence for the child would give rise to a level of trauma for the child for a short time.
He acknowledged conflict between him and the mother during their relationship, but said that his temper was “not a significant problem”.
He was agreeable to the mother’s new proposal for the introduction of gradual time with the child and could cope with the child being ultimately in his care from Thursday to Monday in alternate weekends. He expressed, understandably, reservations as to the genuineness of the mother’s late proposal.
When asked about any recent mental health issues it became apparent that he had seen a psychologist, Ms W in early 2015 for several months as to issues relating to the ongoing litigation. He had previously seen Ms W in 2009 before the previous final orders.
The mother’s concession as to unacceptable risk
During the course of the father’s cross-examination counsel for the mother informed the Court that the mother no longer contends that there is an unacceptable risk in the child spending time with the father.
The Single Expert Dr R’s oral evidence
The Single Expert was required for cross examination. He was provided with updated subpoena material beforehand including notes from Dr V.
He did not resile from his recommendations set out above. He was taken through the mother’s further amended proposed orders. He commented in the following terms:
I think the best interests of [the child] is that he stay with his attachment figure and have a healthy solid substantial relationship with the father. So if his Honour is of the belief that the mother is genuine about her shift from her – and that she has now made a significant and genuine shift in her thinking and has now no longer, sort of been stuck with the belief of – that the father’s – you know, an unacceptable risk. If she’s able to overcome her anxiety, then this would be a substantial shift and that the ability of the child to have a relationship with both parents may now be possible. My concern was that the mother’s anxiety had transmitted to the child and the child had sympathetically developed an anxiety which was making it difficult for him to separate from her. So the test for the proposal that the mother is making is whether she’s able to manage her anxiety adequately so that [the child] can be relaxed enough away from her and not worry about her…
…and the work with Dr [V] also appears to me to be making some significant progress. I can see that the child makes negative statements about the father when with him, but the body language and the interaction is very positive. So that seems to mirror what I experience, that the child’s statements didn’t really match his behaviour. In fact, there is a clear and positive relationship between the child and the father, but the child’s override anxiety is the fear that he will be taken away from the mother. That’s his underlying fear and I think that’s also the mother’s fear, that she will lose the child. So the irony here is that the mother’s anxiety and the child’s anxiety about losing each other has created a situation where that has now become a possibility, where, you know, the child being removed from the mother in order to have a relationship with both parents has, you know, a possible need for consideration. But I’m reasonably confident that if the – if his Honour believes that the mother has made a genuine shift, that having healthy substantial contact with the father and increasing it in a gradual way to then a substantial level, that that has a reasonable chance of success..
... I think that both the mother and the child said to me at separate – on separate occasions that there was an underlying fear that the child would be taken away. So I think it’s a fairly basic fear that children have, and some parents who are very anxious also have, that they may lose, you know, their child. And [X], as the only child, is a very precious – particularly to the mother in that sense and the child is very aware of the mother’s anxiety, and so I think it’s a resonating anxiety between the child and the mother. So there’s significant separation anxiety in the child. I think in 2014 had a lot of difficulty going to school, he missed a lot of school and it would seem that he was having not only separation anxiety leaving mother to see the father but also attending school was a challenge for certain periods of time. So there was an overriding fear about being away from the mother.
As to the general proposal for graduated time Dr R opined:
I think there’s a danger in making it too slow and a danger in making it too fast. So the danger in making it too slow is that the child may still be of the view that there’s a danger about being away from the mother and if it’s going too slowly, may not make the eventual adjustment to being able to have substantial time, as in several days away from the mother. The danger in doing it too quickly is that the mother’s anxiety may be overwhelmed and the child will pick up the mother’s anxiety and then that will then increase his anxiety.
Dr R supported four hour accompanied contact between child and father for three months, then increasing to day contact for a further three months, with overnight time then commencing.
As to the parties’ communication issues he said:
Communication is always an issue and the most effective form of communication is the form of communication where there’s least chance of conflict, and where the objective information about the child can be passed from one parent to the other, but where any disagreements are left out of that form of communication, and any disagreement should be dealt with through a professional path, if possible.
The need for ongoing counselling for the parties was evident with Dr R saying in an exchange with the ICL:
Well, I think the joint counselling, if Dr [V] is in that position of working with the couple to eventually reach a point of agreement and acceptance of the court orders, so that would be, I think, the aim of that therapy would be to help the couple reach an ability to follow what his Honour has ordered, and to make that successful.
So that falls into your other recommendation, does it, that the mother needs to undergo assistance with clinical psychologist?
---Yes. That’s a different---
For her anxiety levels and coping---?
--- Yes. My concern about the mother is that she does have significant anxiety and some personality features of dependency that are significant for her, and that she would benefit from undertaking certain forms of therapy, such as I have mentioned, to assist her ‑ ‑ ‑
CBT?
‑‑‑ ‑ ‑ ‑ building her own internal resilience, and that would not only help her but also help her son in being able to manage and care for him.
And you don’t believe that the child – in fact, you positively recommend against the child having any sexual abuse counselling ‑ ‑ ‑?
‑‑‑Yes.
When informed of the mother’s concession as to the issue of unacceptable risk the Single Expert said:
I think the mother should be congratulated that she has been able to make such a shift. It’s often very difficult in these circumstances for a parent who has had significant fears and anxieties and a particular belief to then be able to make such a shift. So that, I believe, would indicate that perhaps the mother has much greater ability to adapt and be flexible when circumstances present themselves. So that would give me some hope that a good outcome could be achieved..
... one of the key factors here, in order for the final arrangement to be successful, is that the mother supports the arrangement and can manage her anxiety, and support [the child] being away from her and facilitate the relationship. So the fact that she has provided a recommendation of process to achieve that, I would possibly want to support the mother in that and perhaps be more in line with what she’s recommending at this point.
As to the mother’s reflective capacity the Single Expert proffered:
…when I interviewed her, as you may have noticed I did have concerns about her personality style. I was unsure whether it was at a degree of calling it a personality disorder or whether – because she does have a number of very positive strengths and that she is a substantial person. So whether she does have the ability to adapt and reflect, I had some uncertainty, and so that’s why I was a little unclear as to, I guess, how harsh to form a view about a diagnosis and whether that was fair on her. So I felt that there was potentially some capacity for self-reflection but she had painted herself into a corner and I think was finding it difficult to view the situation in any other way at that time.
But it would almost be like a self-betrayal if she took a different view?
Well, perhaps, but if – if she – if your Honour does form the view that she is genuine about her shift now with regard to the father being safe with the child, and if she is genuine – if you see that she is genuine in that shift, then that would indicate positively that she is able to step back, reflect and adapt.
As to whether the child had a fear of the father Dr R said:
I – that’s his stated fear but I think his underlying fear, which is that he’s fearful of losing his mother, rather than fearful of being hurt by the father.
So you don’t think that he thinks that his father is – is that he’s at any risk, spending time with his father?
No.
All right?
I think the fear is fear about being away from the mother and that’s the dynamic, which is a common dynamic we see in children who have separation anxiety, but a lot of children who have school refusal have – where it’s misattributed that the problem is school whereas, in fact, the actual underlying anxiety is the fear about being away from the mother or being away from home, or the parent.
The mother’s position as to her ongoing belief as to sexual abuse of the child being maintained although she was open to other hypothesis was dealt with by the Single Expert thus:
Well, I think that would present her with a huge dilemma if she would – if she holds the belief that abuse did occur, and the court and other official bodies have found differently, then she is caught between her own internal anxiety and the courts and other services, investigating bodies that have found the opposite. She would need to, I think, work with her own therapist to try and resolve that difficulty. If she started to act on her anxieties and started to withdraw the child and her anxieties prevented the child from leaving her because he was becoming overly aware of her anxiety, then this could be a major problem and ultimately it may be that the child would need to be placed with the father in those circumstances...
HIS HONOUR: And hence the role of Ms [B], her psychologist?
Correct.
To work through those issues?
Yes.
And probably tease out all of the underlying triggers for the anxiety?
Correct. And although we haven’t covered those today in the cross-examination, the mother has had to deal with a lot of adversity in her early life and she has done remarkably well, but I think those underlying adversities are probably fuelling some of her anxiety and she needs to be able to manage that.
As to the alternative of the child being moved to reside with the father Dr R said:
…if his Honour decided that the only outcome here, where a good outcome of the child having a relationship with both parents required change of residence, this would be a very major life event for the child. He would be extremely concerned – it would be like enacting his, you know, ultimate fear of being removed from his mother. So he would require a lot of individual support and it would need to be managed in a very child-focussed way and I think he would need some specific psychological assistance during that process.
At the conclusion of the Single Expert’s oral evidence on 28 April 2016 the parties reached agreement as to interim orders pending judgment. Orders were made as follows:
BY CONSENT PENDING FURTHER ORDER:
1.That the child [X Findlay-Lyons] born on … 2007 (hereinafter referred to as “the child”) shall live with the Mother.
2. That the Father shall spend time with the Father as follows:
(a) On Saturday, 30 April 2016, from 10:00am until 3:00pm;
(b)Thereafter, each Sunday from 10:00am until 3:00pm, commencing 8 May 2016.
(c)That the Father’s time shall be substantially in the presence of Ms [F] and/or Ms [M].
3.That for the purpose of changeover, it shall take place at [Ms Y’s] residence situated at [Town Z] NSW .... That the Mother shall not be present during changeover and that Ms [Y] shall facilitate these changeovers.
4.That the parties shall communicate with each other by way of email and/or SMS text message.
5.That the Mother shall use her best endeavours to continue engaging in therapy with Ms [B] (hereinafter referred to as “Ms [B]”).
6.That the Independent Children’s Lawyers shall be granted leave to provide a copy of the Expert Report of Dr [R] dated 29 February 2016 (hereinafter referred to as “the said Report”) to Ms [B].
7.That the father shall be granted leave to provide a copy of the said Report to his therapist, to which he intends to engage in the near future.
IT IS FURTHER ORDERED THAT:
8.The proceedings are adjourned part heard to not before 10.30am 29 April 2016.
9.The mother shall do all things necessary to make the child available with the Independent Children’s Lawyer on Friday 29 April 2016 at such time and place as arranged by the Independent Children’s Lawyer.
NOTATION:
A.The Court notes that Ms [M] is 40 weeks pregnant and is about to have a second child and if in circumstances where the birth of the child renders the Father being unable to attend the visitation, then the Father shall telephone Ms [Y] and inform her accordingly. The parties’ final contentions:
During closing submissions the following day the mother maintained her position and contended for orders as set out in her further amended minute of orders referred to above.
The father proposed orders in the alternative (Exh V). His primary positon in summary was that there should be equal shared parental responsibility, that the child should live with him and the child spend alternate weekends and half holidays with the mother together with other specific occasions. He proposed that there be ongoing family therapy with Dr V.
The father’s alternate position was that there be equal shared parental responsibility, that the child live with the mother and that the child spend time with him on a graduated basis but with the immediate commencement of overnight time leading up to alternate weekends, half school holidays and other special days.
The ICL
The ICL supported the mother’s amended proposal with minor amendment. During submissions the ICL noted that that the parties had agreed on interim orders pending judgment with an agreement that judgment not be reserved formally for a period of about three months or so to see if final agreement could be reached.
Thereafter there has been no further application to the Court to relist or reopen the evidence. It is to be inferred that the orders made on 28 April 2016 have continued without issue.
Parenting
The Statutory Pathway
The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Parental Responsibility
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption relevantly does not apply where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b) …
c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA (4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time (s 65DAA(6)). There is no such consent in this matter.
The mother seeks an order that she have sole parental responsibility for the child. Is the presumption as to equal shared parental responsibility not to apply? The mother makes various allegations against the father. On the evidence they have not been substantiated. Indeed on the other hand there is evidence that is suggestive that the mother’s conduct may amount to abuse of the child.
In all of the circumstances discussed above the Court however cannot be satisfied that there has been abuse of the child or family violence.
It is clear in this matter that the presumption will apply subject to the best interests considerations discussed below. Having regard to the matters discussed above that touch upon best interest considerations and the best interest considerations below there is nothing that is indicative of the non-application of the presumption.
An order for equal shared parental responsibility will be made. However for reasons discussed above and by reason of the best interest considerations below neither equal time or substantial and significant time is in the child’s best interests at present.
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
The child’s relationships with both parents are overshadowed by the issues discussed above, primarily the overshadowing spectre of the mother’s anxiety and personality issues and her enmeshment in her allegations against the father.
Yet the Single Expert, as discussed above, is clear about the necessity to maintain the child’s primary relationship with the mother. The manner in which the children can have a meaningful relationship with the father is clouded by the mother’s anxiety issues that reflect onto the child. A meaningful relationship with the father appears dependent upon a carefully managed reintroduction of the child to reasonable time with him.
The parties themselves by reason of the interim orders agreed at the conclusion of evidence have embarked on that process. It needs to continue as proposed by the Single Expert and supported by the ICL.
Section 60CC(2)(b) – need to protect
This is an overwhelming consideration and must be given priority over issues as to relationship.
In the light of the mother’s concession as to no unacceptable risk to the child in spending time with the father, a concession that accords with the courts view, and the discussion above it is clear that risk such as it is derives from the mother’s anxiety and personality issues that present and may present, into the future, risk of psychological harm to the child.
It is hoped that properly framed orders and arrangements for the child’s time with the father and ongoing therapy will assist the mother in this regard and obviate uncertainties for the child.
The Additional Considerations: s 60CC(3)
Section 60CC(3) sets out the additional considerations:
a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views;
b) The nature of the relationship of the child with:
i) Each of the child's parents; and
ii)Other persons (including any grandparent or other relative of the child);
c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)To participate in making decisions about major long-term issues in relation to the child; and
ii) To spend time with the child; and
iii) To communicate with the child;
ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i) Either of his or her parents; or
ii)Any other child, or other person (including any grandparent or other relative of the child);
with whom he or she has been living;
e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f) The capacity of:
i) Each of the child's parents; and
ii)Any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h) If the child is an Aboriginal child or a Torres Strait Islander child:
i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii)The likely impact any proposed parenting order under this Part will have on that right;
i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)Any family violence involving the child or a member of the child's family;
k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
i) The nature of the order;
ii) The circumstances in which the order was made;
iii) Any evidence admitted in proceedings for the order;
iv)Any findings made by the court in, or in proceedings for, the order;
v) Any other relevant matter;
l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m) Any other fact or circumstance that the court thinks is relevant.
The child has expressed ambivalent views in the circumstances discussed above. By reason of the circumstances in which the child has found himself those views are of little weight or significance in this matter. The Single Expert observed in oral evidence that:
I can see that the child makes negative statements about the father when with him, but the body language and the interaction is very positive. So that seems to mirror what I experience, that the child’s statements didn’t really match his behaviour. In fact, there is a clear and positive relationship between the child and the father…
The nature of the child’s relationships with the parties is dealt with above in detail. The child has relationships with both maternal and paternal extended family.
The engagement of each party in decisions about the child has been overshadowed by their fractured relationship and by reason of the father’s substantially interrupted relationship with the child in the circumstances outlined above. The mother unilaterally changed the child’s school, with that decision perhaps indicative of her then desire to isolate the father from the child. It is hoped that an appropriate engagement by the father in the child’s life and the his ability by reason of equal shared parental responsibility to participate in long term decisions relating to the child will see some progress to cooperative parenting decisions.
The obligation to maintain the child has paid little role in the proceedings and is of little consequence. The father says he pays half the child’s school fees and will have an ongoing child support liability for the child. Otherwise the mother meets the child’s financial needs for support.
The likely effect of changes to the child’s circumstances is discussed in the context of the Single Expert’s evidence. The undesirability of a change of residence at this time is readily apparent. The child’s transition to time with the father is under way by agreement and there appears to have been no issue arising. Orders need to be fashioned to continue that progression in a child focused way.
An assessment of the parties’ respective parenting capacity depends on the matters discussed in detail above. The mother has significant issues as to anxiety and poor reflective capacity as to the impact of her issues on the child. Hopefully orders that provide to the mother some reassurance as to the child’s developing relationship with the father will see the mother’s capacity improve. The father in recent times has had his relationship with the child disrupted. Yet he maintained contact with the child’s school. There are no reservations that he will grow into the role that he always should have had with the child.
The child is no longer of tender years. At trial he was aged nine. His interviews with Dr V saw him demonstrate some maturity in circumstances where his self-confidence must have been sorely challenged by the mother’s enmeshment of him in her anxiety.
The attitude of the parents is demonstrated by the factual matrix set out above. Hopefully the end of litigation will allow them both to become more child-focused.
There are allegations of family violence one against the other. If any, it was relationship-based and is now well into the past. There is no relevant family violence order.
There are no other relevant circumstances.
The discussion of the best interest considerations in the context of this matter are clearly indicative of orders substantially as sought by the mother and the ICL and supported by the Single Expert as to the child’s time with the father. The parties should have equal shared parental responsibility particularly so that the mother is reminded of the importance of the father’s role in the child’s life and that the father is so engaged.
It is hoped that the expectations of the Single Expert for the amelioration of the mother’s anxiety will be well founded. In that regard it is appropriate to make orders that will least likely lead to further litigation.
Orders will be made in the best interests of the child as set out at the forefront of these reasons.
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 26 August 2016.
Associate:
Date: 26 August 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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