Griffiths & Porter
[2023] FedCFamC1F 3
Federal Circuit and Family Court of Australia
(DIVISION 1)
Griffiths & Porter [2023] FedCFamC1F 3
File number: LNC 820 of 2020 Judgment of: MCGUIRE J Date of judgment: 24 January 2023 Catchwords: FAMILY LAW – CHILDREN- Application by mother seeking orders that child live with her – that the child spend time with the father every second weekend and for half of all school holidays – Application opposed by the father who seeks mirror orders – Allegations that the mother poses an unacceptable risk to the child’s emotional and physical health by reason of her propensity to over-diagnose and doctor shop in respect of the child’s medical issues - Orders that child live with the father and spend time with the mother each alternate weekend and for half of all school holidays Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CC(2) and (3)
Cases cited: Briginshaw v Briginshaw [1938] HCA 34
Champness & Hanson [2009] FamCAFC 96
Fitzwater v Fitzwater (2019) 60 Fam LR 212
Galea v Galea (1990) 19 NSWLR 263
Isles & Nelissen (2022) FLC 94-092
M v M (1988) 166 CLR 69
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Division: Division 1 First Instance Number of paragraphs: 217 Date of hearing: 14, 15 , 16, 17, 18, 28, 29 and 30 November 2022 Place: Heard in Launceston, delivered in Hobart Counsel for the Applicant: Mr Murray Solicitor for the Applicant: Murray & Associates Counsel for the Respondent: Ms Brown Solicitor for the Respondent: Legal Solutions Barristers & Solicitors Counsel for the Independent Children’s Lawyer: Mr Verney Solicitor for the Independent Children’s Lawyer: Matthew Verney Barrister ORDERS
LNC 820 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GRIFFITHS
Applicant
AND: MR PORTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCGUIRE J
DATE OF ORDER:
24 January 2023
THE COURT ORDERS THAT:
1.The father, Mr Porter, have sole parental responsibility for the child, X born 2011 (“X”) subject to the father providing appropriate notice to the mother, Ms Griffiths of all important issues involving X’s education and medical matters.
2.X live with the father.
3.X spend time and communicate with the mother as follows:
(a)each second weekend from the conclusion of school on Friday until 5.00pm on Sunday commencing on the second weekend after the date of these orders;
(b)for one half of each Tasmania gazetted term school holidays from Friday at the conclusion of school until the second Saturday at 12 noon;
(c)on a week about basis during the longer Christmas/summer school holidays with changeovers to take place on Fridays at 5.00pm and to commence on the first Friday of such holidays in 2023 and in each alternate year thereafter and commence on the second Friday in 2024 and each alternate year thereafter;
(d)from 3.00pm on Christmas Day until 3.00pm on Boxing Day in even numbered years;
(e)from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in odd numbered years; and
(f)should X not otherwise be in the care of the mother, then from 5.00pm on the Saturday preceding Mother’s Day until 5.00pm on Mother’s Day.
4.Notwithstanding anything to the contrary in these orders X shall be in the care of the father at the following times:
(a)from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in even numbered years;
(b)from 3.00pm on Christmas Day until 3.00pm on Boxing Day in odd numbered years; and
(c)should X not otherwise be in the care of the father, then from 5.00pm on the Saturday preceding Father’s Day until 5.00pm on Father’s Day.
5.For the purposes of changeovers the mother is to collect X from school or the father’s residence (in the event it is a non-school day) at the commencement of time and the father shall collect X from the mother’s residence at the conclusion of time and for these purposes the collection by the mother is to take place outside the school front gate.
6.Such variations of the above and further or alternate times as agreed in writing between the parents.
7.The mother be and is hereby restrained from taking X to any doctor or behavioural scientist without the express written consent of the father.
8.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Griffiths & Porter has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE
APPLICATIONS
This is a parenting application in respect of the parties’ one child namely X (“X”) born 2011 (aged 11 years).
The applicant is the mother, Ms Griffiths. She seeks an order that X live with her and spend time with the father in a traditional form of each second weekend from Friday after school until Monday at the commencement of school (extended to Tuesday in the event of a long weekend) together with week–about during school holidays and special days.
The mother has remarried. There are two younger children of that relationship namely T (aged six years) and U (aged five years).
The father, Mr Porter, asks for orders that X continue to live with him which has been the case since interim orders were made by Judge Turnbull in December 2021/January 2022.
The father has re-partnered. There also two younger children in his household being V (aged two years) and W (an infant).
The father asks for orders whereby he have sole parental responsibility for X, that X live with him, and that X spend each second weekend with the mother together with block periods of five days in school holidays together and time on special days.
Given the issues that confront the parties and the Court in this matter, the mother concedes that should X remain living with the father then he should have sole parental responsibility for X in respect of medical and education needs given expert opinion as to the anxiety suffered by X due to conflict in respect of these issues between the parents. Similarly, however, if X is to live with her then she would assume sole parental responsibility for those matters.
The Court and the parties had the benefit of an Independent Children’s Lawyer (“ICL”) who generally favours the position of the father.
THE ISSUES
Fundamental to this matter is the conflict between the parents in respect of X’s health and extending to matters of education. Put simply, the father says that the mother has a propensity to vigilantly over–diagnose and seek confirmation from various therapists such as is inconsistent with his experience of his son and more current and objective diagnoses.
Undoubtedly the conflict between the parents has extended to X’s schooling where the mother has been banned from his primary school, B School, where she in turn has brought complaints against that school and its staff. The enrolments for X, T and U were all cancelled by the school due to what they say was inappropriate behaviour of the mother and perhaps her husband.
The issue for the Court, therefore, is whether this mother has acted reasonably and objectively in respect of the various diagnoses and her responses to those diagnoses for X where, by implication, she therefore suggests that the father is ambivalent and non-responsive in respect of X’s medical issues.
This fundamental issue must be seen within the context of the parties having separated at around the time of X’s birth and X having lived primarily with the mother until the interim orders of late 2021/early 2022 placing him in the care of the father.
The mother’s case
The mother argues that she was X’s primary carer for the first 11 years of his life until late 2021. She said that during that long period since separation both parties had complied with court orders and that any recent allegations of her non-compliance can be explained as an aberration due to her strongly held subjective views as to X’s best interests and, in particular, his medical needs.
The mother says that she is informed and capable in respect of dealing with X’s numerous health issues where she properly seeks professional advice and utilises appropriate therapeutic assistance and hence has at all times acted responsibly in respect of X and in his best interests.
The mother accepts that X suffers extreme anxiety due to the conflict between his parents and for this reason would concede sole parental responsibility to the father in respect of issues of health and education should the Court be inclined to leave X in the care of the father, although she argued strongly against such an order.
She says that X has established relationships with her current husband and his two siblings in in her household where X was previously a full member of that family unit.
The mother says that she has at all times acted appropriately in respect of her dealings with X’s school, B School and brought formal complaints on proper grounds where she says that she was dissatisfied with the school’s response to X’s many needs. The mother denies any inappropriate behaviour on her part and, to the contrary, says that she, her family, and X are the victims of the school’s response to her well–founded and proper formal complaints.
The father’s case
The father says that X’s best interests are served by him remaining living with the father in a family unit with the father’s partner and X’s two siblings. He says that he has and will continue to encourage and foster X’s relationship with the mother but where X needs to be protected from the mother’s propensity to “over–medicalise” and “doctor shop” in order to manufacture and/or exaggerate X’s supposed symptoms.
The father says, contrary to his own commitment, that the mother has habitually breached existing court orders by over holding X necessitating urgent applications to this Court which in itself shows her lack of objectivity and child focus and where, for instance, the mother has a demonstrated a tendency to obtain diagnoses in respect of X without consultation or involvement of the father.
Whilst acknowledging some issues for X, the father says that his experience of X, similar to that of his school, is one of X not exhibiting the behaviours and symptoms asserted by the mother or to the degree asserted by her.
The father says that X similarly has established loving relationships within the father’s family unit.
BACKGROUND
The mother is 34 years of age and the father 33 years. They met in 2006 and married in 2009.
X was born in 2011 and the parties separated later that year.
In early 2012 the mother married her current husband, Mr C.
On 7 December 2012 orders were made in the Federal Circuit Court for the parents to have equal shared parental responsibility for X and with X to live primarily with the mother and spend each second weekend and Wednesday evenings with the father.
Further, orders were made on 13 April 2015 providing for equal shared parental responsibility and with X to live with the mother but with extended times on weekends and time on school holidays with the father.
The mother herself says that she suffers diagnoses of the autism spectrum disorder and ADHD. It seems that those diagnoses came contemporaneously with or soon after similar diagnoses for X in about 2019.
The mother’s children, T and U, were born in 2015 and 2017 respectively.
The mother says that she began to observe developmental concerns for X in about 2017 whereupon she obtained a referral to a psychologist, Ms D, in early 2018 with X being assessed between early and mid-2018.
In 2018 and 2019 X was diagnosed with a number of conditions. According to the mother’s trial affidavit, X was prescribed various medications.
Between 2018 and October 2020 X seems to have been diagnosed with multiple conditions.
In 2021 the mother and her husband were banned from X’s school with X’s enrolment cancelled as were those of the mother’s two younger children.
On 9 December 2021 an interim order was made by Judge Turnbull for X to live with the father and for the child’s enrolment with B School to be reinstated with the agreement of the school whilst the mother’s ban remained.
On 23 December 2021 further orders were made for X to live with the father and spend time with the mother.
On 31 January 2022 interim orders were made for X to live with the father and spend alternative weekend day time only with the mother.
In early 2022 the mother withheld X contrary to extant interim orders.
In 2022 the mother withheld X from the father on several occasions necessitating recovery order proceedings.
THE RELEVANT LAW
Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) mandates that X’s best interests are to be my paramount consideration in determining his living and parenting arrangements. I determine those best interests by referencing the parties’ proposals and the probative evidence before me to the numerous matters set out s 60CC(2) and (3) of the Act against a background of the Objects and Principles of the legislation set out in s 60B which provides as follows:
(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).
In the matter now before me each of the parents asks for an order for sole parental responsibility for X. Section 61DA of the Act offers a presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility. Section 61B defines this “responsibility” as relating to the powers, duties and authority that parents have by law for their children. In a practical sense, this usually manifests as the making of long–term or important decisions for children as opposed to the more mundane day–to–day decisions that parents habitually make for their children. Issues of education, religious affiliation, and medical procedure are often cited as examples of the obligations of “parental responsibility”.
The presumption of equal shared parental responsibility at 61DA does not apply if the Court is satisfied that there has been family violence or abuse of the child within the broad definitions in the Act. Alternatively, the presumption at s 61DA may be rebutted by evidence satisfying the Court that it would not be in the best interests of the child for the parents to exercise equal shared parental responsibility.
The presumption at s 61DA applying or not being rebutted leads to a course of statutory and evidentiary consideration by the Court as to the child’s living arrangements based on a two limb consideration of both the child’s best interests and reasonable practicability. Firstly, the Court is to consider whether the child living in an equal time arrangement between the parents is both in the child’s best interests and reasonably practicable and if the answer to either of those questions is in the negative then the Court turns to consider whether the child living in an arrangement of “substantial and significant time” be both in the child’s best interests and reasonably practicable. This regime involves periods and configurations of time for the child with each parent which include weekdays and weekends. Nevertheless, the nature of the dispute between these parents is such that neither proposes orders other than the non-primary parent having more than weekend and holiday time with X.
UNACCEPTABLE RISK
The crux of the father’s case is that the mother poses an unacceptable risk for X’s emotional and physical health by reason of her obsessive and over servicing of medical matters without objective need.
The father here urges the Court to make positive findings in respect of the mother’s behaviour which is, of course, a retrospective fact-finding exercise. The Court is also mandated, however, to conduct a prospective consideration as to the risk of such behaviour occurring into the future. The leading decision in respect of this issue of risk or “unacceptable risk,” remains M v M[1] where the High Court said at [76] in respect of issues of sexual abuse but where the principles remain valid in respect of all types of risk:
76.In considering an allegation of …, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw[2]. …
[1] (1988) 166 CLR 69.
[2] Footnote omitted.
The High Court in M v M (supra) sets out the broader perspective of the Court’s consideration in respect of unacceptable risk as against a finding of fact at [21] and following as thus:
21.Viewed in this setting, the resolution of an allegation of … abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of … abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of … abuse on the balance of probabilities.
22.In considering an allegation of … abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw … It does not follow that if an allegation of … abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
23.No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that … abuse has taken place. …
24.In resolving the wider issue the court must determine whether on the evidence there is a risk of … abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of … abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. …
25.…. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of … abuse.
The Full Court has recently revisited the issue of unacceptable risk, in particular the evidentiary provisions for such determination, in Isles & Nelissen[3] with the Court concluding that where the evidentiary standard of proof provided by s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) applies in respect of the retrospective fact-finding exercise, such is not applicable in the prospective determination of unacceptable risk which deals with consideration of possibilities and consistent with the dissenting judgment of Austin J in Fitzwater v Fitzwater[4] where his Honour succinctly summarised the issue at [138] thus:
The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before … Risks of harm must be heeded even if they are improbable eventualities.
(Emphasis added)
[3] (2022) FLC 94-092.
[4] (2019) 60 Fam LR 212.
Section 140 of the Evidence Act enshrines the common law principles most frequently referenced in the decision of the High Court Briginshaw v Briginshaw[5] where Dixon J stated at [361]–[362]:
… when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
[5] [1938] HCA 34.
Section 140 of the Evidence Act now provides the standard of proof in civil matters such as that now before me and as follows:
Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Whilst the fundamental task of this Court is a fact-finding one with a view to the prospective best interests of a child, it remains an evidentiary truism that a party making an assertion of fact carries an onus to prove that fact on the balance of probabilities consistent with s 140 of the Evidence Act.
In determining facts on the balance of probabilities the Court is often confronted with issues of credit between the parties and the witnesses. Where judges in these Courts assume the role of “juror” in being the determiner of facts, such issues of credit can assume a critical importance. Matters of corroboration can be of assistance but not determinative where the subject matter before these Courts is often not conducive to corroborative evidence. Judges do, however, have the distinct advantage of being able to see and hear each of the parties and their witnesses give evidence and be cross–examined.
In Galea v Galea[6] Kirby ACJ noted the advantages available to the trial judge including the following:
(a)Hearing the evidence in its entirety;
(b)Hearing and seeing all evidence in context, chronologically and logically advanced;
(c)Having time during adjournments and during the running of the case to reflect upon the evidence and to weigh against all other evidence whilst fresh;
(d)Hearing and seeing interruptions, hesitations and delays in the giving of testimony, including during the important process of cross-examination; and
(e)Observing body language, demeanour, and attitude of the witness sometimes important for interpreting communication.
[6] (1990) 19 NSWLR 263.
Whilst the above are tools of assistance for trial judges and the consideration of credit is significant to the veracity of the evidence before the Court and hence the fact-finding process, judges must, however, always be cognisant of the pitfalls of giving too much credence solely to one or a number of the factors set out above where the Court should also be aware that parties and witnesses are likely to be nervous and in an unfamiliar environment when giving evidence where the outcome of the case is of crucial importance to them and where they are challenged in cross-examination as to serious issues.
THE EVIDENCE
The mother
The mother relied on her affidavit sworn 3 October 2022 and was cross-examined.
The mother volunteered that she suffers a diagnosis of autism and perhaps ADHD. Her evidence must be seen in the light of this unchallenged statement where she presented as intense, articulate, committed and focused. She seemed unable to make admissions against interest or to make positive statements in respect of the father with whom she conceded an extremely poor relationship.
I also observed the mother to prevaricate, be non-responsive, deflecting and selective in her evidence. She showed a tendency to be elaborative and expansive in her responses often losing the tenor of the question.
The mother’s demeanour and her responses in cross-examination showed her being reluctant to accept any opinion contrary to her own including expert opinion despite making generalised statements to the contrary.
Overall, I found the mother to be a subjectively honest and child focused witness. She clearly loves X and has his best interests very much at heart. Her views, however, are set and she showed little or no willingness to consider opinions other than those that support her views. Prominently, her relationships with the teachers and other staff at X’s school are, in my view, undoubtedly a manifestation of these behavioural traits. Similarly, where Dr E, X’s paediatrician, offered a more recent diagnosis, informed by discussions with X’s previous dieticians, contrary to the mother’s view then her responses were, at best, equivocal and, at worst, unaccepting.
Mr C
Mr C is the mother’s current husband and was the primary male role model in X’s major place of residence until late 2021 when X moved to live with the father.
Mr C’s evidence was perplexing. He was assertive in the extreme. Even more so than his wife, he seemed unwilling or unable to accept opinion other than his own. Specifically, he was unable to accept later diagnoses for X that did not accord with previous diagnosis.
There were aspects to Mr C’s evidence which were disturbing in the context of X’s best interests. In particular, Mr C was candid in volunteering that he saw no difficulty in retaining X, or supporting the mother’s retention of X, contrary to court orders. Similarly, his lack of child focus was evident in the entitled way in which he saw nothing untoward with X referring to him as “dad” in circumstances where he was vocal in expressing his abject dislike and disrespect for X’s father.
My observations of Mr C were of an entitled and opinionated man whose evidence at times verged on arrogance.
The father
The father relied on his affidavit filed 26 October 2022 and was cross-examined.
The father was generally an open and good witness. He too, however, prevaricated in many responses under cross-examination and, like the mother, presented as unwilling to make admissions against interest. His evidence was given in a context of obvious suspicion of the mother and Mr C and their motives in respect of X.
The father did, however, seen more objectively child focused in his affidavit material and confirmed in cross-examination, where there was a willingness to accept and respond to the medical and professional opinion in respect of X even where he maintains absolute suspicion in respect of previous diagnoses which he sees as being obtained by the mother for an agenda other than X’s best interests.
The father’s demeanour in the witness box is highly suggestive of an unwillingness or inability to be part of any cooperative or communicative relationship with the mother into the future.
Ms G
Ms G is the partner of the father. She provided an affidavit of 28 October 2022.
Ms G was a good and objective witness who was child focused in her response. Unlike Mr C, I did not detect any sense of Ms G attempting to usurp the role of the mother. She presented as empathetic and objective in respect of X.
In her affidavit Ms G observes X as “rarely complains of being tired or exhausted. He is active and from my perspective a typical pre-teen…”.
Ms G says that she has never observed X to be so fatigued that he requires assistance.
She describes X as a caring and sensitive child who is highly intelligent, imaginative and loving.
Ms G says that she has observed the impact on X of the high level conflict between his parents.
Ms G says that she has never experienced abusive or violent behaviour from the father.
Dr E
Dr E is a paediatrician of considerable experience. He has been X’s paediatrician since early 2021. I found Dr E’s evidence to be learned, informed and considered.
Dr E provided an affidavit affirmed 14 October 2022 annexing a report/assessment in respect of X. It is clear Dr E had consulted with a number of specialists dealing with X including Professor F; Dr H, and Dr J.
Where it seems that X had previously suffered a diagnosis of a specific disorder, the above‑mentioned specialists together with Dr E now cast doubt on such diagnosis.
Dr E reports Dr H, having met X in mid-2020 in respect of a possible underlying disorder with resultant fatigue. That meeting was by way of telehealth. Dr H subsequently had a face-to‑face consultation with X at K Hospital (“K Hospital”). He reported no evidence of physical abnormality and specifically there were no indicators of problems. Dr E reports Dr H indicating that he “would not be surprised if all investigations were normal”. Dr H did provide a finding of a genetic variant being detected in X but of uncertain significance and noting that problems in respect of this genetic variant are “usually of adult onset when they do cause a clinical problem”.
Dr E also reports from Dr J that she has seen X in the K Hospital clinic on three occasions all by telehealth and hence not had the opportunity for physical examination. Dr J did not believe that the variant was contributing to X’s reported symptoms and noted that disorder sequencing undertaken on X sister, U, had proven normal “making it highly unlikely that [X] would have [an] abnormality”.
Dr E reported Professor F meeting X in 2019 in respect of a number of medical issues. Professor F’s physical assessment did not identify a specific diagnosis but found that X did not fulfil clinical criteria for a mobility issue suggesting that there is no genetic diagnosis that is currently affecting the child.
Dr E reports that both Professor F and Dr J thought it surprising that X would be requiring assistance given the normal test results.
Dr E provides his own “summation” in respect of X at page 13 of the affidavit as follows:
[X] initially presented for medical assessment with the problem of easy fatigue along with ADHD, ASD and [another disorder]. Based on a reported family history that could suggest an underlying […] disorder and a research exome screening that found several potentially relevant genetic variants, [X] has been managed with an intensive intervention program and has had further evaluation for such underlying genetic conditions. To date no such evidence has been found and hence the diagnoses […] are no longer considered valid. There would appear to be a case for the withdrawal of the current medical treatment that that was commenced on the presumption of such a genetic condition though it would be most appropriate for this decision to be made by the [K Hospital] teams following a face-to-face medical review to enable a thorough physical assessment and overall re‑evaluation and I understand that this is planned.
The reports from school do indicate the presence of ADHD for which he is on appropriate treatment. His academic progress is overall very good, and he has been recognised as being in the Highly Gifted range. He does have a Specific Learning Difficulty in written expression and is regarded as meeting criteria for [a disorder] and Occupational Therapy support can be useful for this problem; he does not have [another learning difficulty] as is recorded in reports from[ K Hospital]. [X] no doubt has had difficulties with anxiety however at the appropriate time it would be hoped that he could be weaned off the medication he receives for this problem. He is generally eating well with an appropriate growth pattern.
I will keep [X] under surveillance with regular reviews in the Paediatric OPD and will continue to liaise with his [K Hospital] specialists.
Dr E gave evidence and was cross-examined. He generally confirmed his more recent diagnoses. My observations of Dr E and my understanding of his responses in cross‑examination were of some caution in respect of the tools readily made available by NDIS for X where such tools may not be necessary in light of the later diagnoses.
Dr E conceded that he did not hold any concerns that either of the parents had acted other than in accordance with professionals’ advice.
Dr E described the mother as assiduous in researching X’s symptoms and that the mother presented as an intelligent and caring parent.
Put simply, Dr E explained that whilst X does have problems including issues with fine motor skills, the list of previous potential serious diagnoses have been considered and discarded but where Dr E accepted that X most probably suffered ADHD and/or autism.
Ms L
Ms L is an Occupational Therapist. She provided an affidavit for the ICL sworn 21 October 2022. Ms L gave evidence and was cross-examined.
Ms L was X's Occupational Therapist from early 2018 until late 2020 and shortly after a team meeting at X's School involving all relevant medical professionals and teachers as well as parents.
Ms L had prescribed an aid for X on a previous medical suggested diagnosis. Later diagnoses caused her to reassess the use of an aid for X. She deposes that the mother requested that she write new guidelines for X’s use of equipment and to provide reasons why she was no longer advocating for daily equipment use at school. Ms L deposed that the mother, contemporaneously with the withdrawal of the aid for X, also put Ms L’s therapy sessions with X “on hold for Term 4” and apparently due to the mother’s “busy family life”. Ms L has not since assisted X.
In cross-examination Ms L confirmed that she came to a later view that X was using unnecessary aids but did so on the basis of later diagnoses.
Ms L said that she did not herself observe “fatigue” in her sessions with X but acted on the advice of the mother.
Mr M
Mr M did not provide an affidavit but attended court on a subpoena issued by the ICL.
Mr M was X’s disability support worker from late 2019 until early 2022. His evidence indicated that a strong relationship had developed between he and X.
Mr M’s services were terminated by the father following Mr M stopping by the mother’s home, on a request by the mother, to collect X’s uniform in anticipation of a session that evening. He had not been provided with any court order although one apparently existed which, according to the father, prevented contact in any circumstances between X and his mother. Mr M described a “heated” telephone call from the father followed by text message all of which terminated his services.
Mr M described the mother as supportive of his role with X but the father “not always as supportive as was the mother”.
Dr N
Dr N has been the General Practitioner for the mother and X since 2013. She provided an affidavit affirmed 20 October 2022 and attended court for cross-examination.
Dr N opined that her observations of the mother were consistent with the mother’s diagnoses of ADHD and Autism Spectrum Disorder.
Dr N observed the mother to be sympathetic and informed as to X’s various diagnoses but with the father not agreeing with an initial diagnosis of ADHD for X and requesting a second referral to another Paediatrician whilst indicating a complaint against the initial diagnostician.
Mr O
Mr O is a manager in the education sector. He provided an affidavit filed 23 October 2022.
Mr O deposed to having been the recipient of a complaint by the mother to his professional board including for such matters as asserted false representation in an affidavit. Mr O advised that the complaint has been considered and dismissed.
Mr O provided a chronology and documentary evidence in respect of the conflict between the mother and her husband as to their dealings with the B School resulting in the cancellation of the enrolment for X and his Griffiths siblings and the “banning” ultimately of both the mother and her husband from the school. The general tenor of the affidavit and annexures sets out allegations of aggressive and unco-operative behaviour and attitude.
Mr O deposes to and provides documentary evidence in respect of an application for a restraint order and the ultimate interim order obtained against the mother in mid-2022. The matter is listed for hearing in respect of final orders early in the new year.
Mr O presented as a good, informed and balanced witness. He indicated that a dialogue may be re-opened in respect of the lessening of restrictions in respect of the mother and her husband’s dealings with B School. Mr O clearly indicated, however, a concern held by management in respect of the health and safety of members of the school where he volunteered that one member of staff remains on stress leave following that person’s dealings with the mother and her husband.
Dr P
Dr P is a Consultant Psychiatrist well experienced in giving expert evidence and assessments in the Family Law Jurisdiction. Dr P provided reports of 24 March, 9 May and 19 May 2022. He had conducted assessments in respect of the parents and also meeting with their respective spouses.
Dr P gave evidence and was cross-examined. His responses were generally consistent with the conclusions in his reports.
Dr P reported that the mother described herself as a victim of family violence now diagnosed with ADHD within the previous two years and a suggested diagnosis of Autism Spectrum Disorder.
The mother described her children, including X, as:
…all have an autism diagnosis, the boys have an ADHD diagnosis. They’ve all got [a number of difficulties], all different […] except my daughter. [X] always had asthma, atypical.
The mother described her relationship with the father as being characterised by family violence. She saw the father as uncooperative in respect of X’s health issues to the stage of being obstructive.
Dr P interviewed and assessed the mother’s husband, Mr C. His mental state at interview was found to be unremarkable.
Dr P reports the mother’s husband, Mr C, describing a good relationship with X but gave indications of conflict between he and B School. As observed in court, Mr C volunteered an antagonistic attitude towards X’s father.
Dr P interviewed the father who gave a history consistent with his affidavit material. Generally he describes X as more active than the mother’s observations of the child. The father gave indications of suspicion as to the mother’s propensity to obtain “new diagnosis”.
Significantly, the father is reported by Dr P as saying that X:
…tells people what they want to hear. Totally different person in two different spaces, says what people want to hear. Says he is really enjoying school, has a group of friends, is relaxed and calm at home.
The father reported X at four years of age saying to him:
I don’t know why I had to come here… [You’re] just a sperm donor, [Mr C] is my daddy, [you’re] just the biological father'.
Dr P interviewed the father’s partner, Ms G. She described herself as a “home mum” and was generally seen as supportive of and sympathetic to the father’s viewpoints.
Dr P had the benefit of meeting with X whom he described as:
… a lively child in school clothes, wearing glasses, neck length dark hair. He entered my consulting room readily, without apparent nervousness or hesitation, and unaccompanied. During the interview there was hardly any fidgeting, he showed normal animation, serious face when discussing serious subjects, and smiling appropriately at times. He was forthright saying what he thinks without hesitation or apparent consideration of effect, makes very mature use of language. There were many spontaneous remarks not elicited by questions.
X volunteered to Dr P “I would like it this way and to stay overnight at mum’s for weekends and Wednesday until 7.00pm”.
X volunteered that his mother is always talking about “my disabilities” but that he did not regard himself as disabled and specifically as to the use of equipment he reported to Dr P “I don’t really use it … At his father’s there is more freedom”.
Dr P opined at page 41 of his first comprehensive report:[7]
The Child appears to have adopted a policy of keeping the peace by complying with the regimes imposed in the two parental households, engaging in full physical activity when with the Father and at school and accepting use of [mobility equipment] when considered necessary by the Mother when with her. He finds the paternal regime preferable, the Mother’s restrictive, and her interactions with him too focused on his “disabilities”.
[7] Dated 24 March 2022.
And at page 42 Dr P opines:
If the Mother’s belief is that the Child is best served by protective measures that have a deconditioning effect there needs to be the most authoritative warrant for that, as it will impact on the Child’s expectations of life and on his self-image. It may be right in some cases to tell a child “you will never be able to…” but that must be based on a non-remediable certainty and not on fears or possibilities.
Dr P saw a non-specific symptom such as fatigue being readily induced or exaggerated by suggestion.
Dr P was of the view that there was no clear evidence of Autism Spectrum Disorder, or other conditions in respect of X.
Dr P continues:
Of the diagnoses proposed, ADHD, Autism Spectrum Disorder and Anxiety, it is my opinion reasonable to accept that there is evidence of ADHD, but features considered in the past to be evidence of autism can be explained by the complexity of the Child’s domestic settings, his varied interactions within them, and his adaptation to them. His anxiety can be regarded as situational and not as a separate disorder.
Similarly, Dr P is of the view in respect of the mother:
…Her mental state at interview and recent history does not support diagnoses of Autistic Spectrum Disorder or Attention Deficit Disorder, and her history does not support a diagnosis of Complex Post Traumatic Stress Disorder. She does have a marked tendency to be made anxious by circumstances, but she does not appear to have a Generalised Anxiety Disorder.
Dr P notes the father’s past depressive syndrome but suggests that the depression was situational and stress-related with there being no clear evidence of the presence of a depressive illness now.
In his opinion at page 46 Dr P states:
The Mother appears to be convinced that the Child, like his younger half-siblings, has multiple mental and physical disorders, and needs special management involving psychological treatment, occupational therapy, physiotherapy, dietetics, psychostimulant and antidepressant medication, [mobility equipment] and social training and support. These concerns are of complex origin, including anxiety, family history of similar diagnoses, at least one proven inherited disorder which she has transmitted to her Child (and other proposed conditions with an hereditary component), her feelings about that, her own diagnosed disorders and her consequent strong identification with the Child
At the time of writing the Mother strongly defends the diagnoses applied to the Child’s conditions, and her view of the treatments he required. She appears to seek professional reinforcement of these view and to reject contrary opinions, but there are indications that she may be able to accept authoritative advice that changes some of the diagnoses and modifies the treatments recommended. If that is the case, her opinions about the Child and his treatment are not held with delusional intensity and are unlikely to be a feature of Factitious Disorder imposed on another, she is at least an over-anxious mother over-identified with her Child.
In cross-examination, Dr P agreed that there was no evidence that the mother acted other than on appropriate diagnoses from specialists in respect of X.
However, at page 47 of his first report Dr P says:
In the care of the Mother the risks to the Child are of inducing a perception of disability where little or none exists, of deconditioning to educational and physical activity, of an induced hypochondriasis characterised by somatic symptoms and fatigue. In the care of the Father there may be a minimal risk of under-estimation of his difficulties with the limited possibility of excessive demands on him for performance in some or all areas of activity.
At page 49 of his report Dr P considers that:
…the Mother may need supportive counselling to enable her to adapt to a substantial change in her perception of the Child’s needs. The Mother’s Attention Deficit Disorder, if ever present, has apparently abated with maturation. Her reported Autistic Spectrum Disorder would appear to be of limited effect, but may possibly contribute to her intensity of interest in matters relating to the children’s conditions. …
In conclusion in that first report Dr P suggests that the mother’s present view of X would appear to result in an unacceptable risk of the child being over-restricted in activity and learning experience with the results noted.
Dr P’s subsequent reports are in response to questions raised by the solicitors for the mother and the ICL.
Dr P’s opinion essentially remains unchanged from his substantive report. He confirms that the mother’s viewpoints as to the conditions of the child are based on professional opinions provided to her, but is of the opinion that there is concern as to the perceived level of severity of the conditions by the mother together with the level of restriction and assistance provided to X.
Dr P suggests consequences such as stigmatisation, lower scholastic and physical aspiration, excessive and lasting dependence on artificial aids, exercise restriction, and general inhibition of adaptation for X.
Dr P saw the father as not appearing to question the diagnoses authoritatively applied to X and as someone who saw no difficulty in seeking professional assistance whenever X might need it.
Dr P said, however, that the father appeared to hold a view that the regime advocated by the mother involved excessive restriction and intervention in X’s life.
Ms Q
Ms Q is a senior staff member of R School in City S. She swore an affidavit on 13 October 2022 for the ICL. She gave evidence and was cross-examined.
Ms Q is responsible for a program run at R School for students satisfying the criteria and from the wider City S area. The program operates during school terms and each Friday between 9.00am and 3.00pm. X satisfied the criteria and attended on nomination from his school principal from the commencement of Term 3 2019 until late 2021.
Ms Q observes that upon enrolment X was not engaged with his learning and was not reaching his academic targets but demonstrated gifted attributes.
X no longer attends the program on a face–to–face basis, but attends online. Ms Q was of the view during cross-examination that X would benefit from face-to-face attendance but accepted that there were pros and cons for either method of engagement.
At [9] of her affidavit Ms Q says that she observed X to be “frequently tired and very sensitive to noise”. She saw this as consistent with “sensory overload” consistent with children suffering an autism diagnosis or highly gifted. She observed reluctance in X initially to engage and perhaps for fear of failure given his perfectionist tendencies.
Ms Q understands that X continues to engage and is an enthusiastic participant in the program albeit now by way of remote attendance.
Ms Q observed signs of fatigue in X and sometimes his use of a mobility aid.
Until late 2020, Ms Q’s interactions were more commonly with X’s mother who she found attentive and sympathetic to X’s needs.
Ms Q’s affidavit outlines an incident between the parents in early 2021 where X was to transit into the father’s care on a Friday afternoon, but where the mother collected X contrary to a court order and when challenged by Ms Q that she was breaking a court order, the mother responded, “I know” and left with X.
Mr Y
Mr Y is a senior staff member of B School. He swore an affidavit on 13 October 2022. He gave evidence and was cross-examined.
It was clear from the content of Mr Y’s affidavit and his evidence in court that he considered as serious the confrontations for himself and his staff with the mother and her husband, Mr C, resulting in the disenrollment of X and his Griffiths siblings. Mr Y’s affidavit relates the effect on staff members of such confrontations. Mr Y himself has been the subject of complaint by the mother to his professional body.
Mr Y confirmed the school’s reluctance to overturn the ban on the mother and her husband, Mr C, from B School.
Mr Y was complimentary of X’s progress this school year, both academically and socially. At [6] of his affidavit Mr Y comments:
My observations are that socially and emotionally, [X] is thriving at school this year. He appears enthusiastic and fully engaged in school life. He tackles school activities with a positive can–do attitude and expresses pride in his achievements. This is quite different to my observations of [X’s] conduct and attitude in the past, where I regularly observed his demeanour to be negative, mopey, withdrawn and/or sullen. I understand from discussions with [X’s] grade 4 teachers last year, and his grade 3 teachers in 2020, that he was previously reluctant to attempt any activities which were challenging or which he did not like, and he frequently complained about tasks he was asked to attempt.
X is observed to have developed strong friendships this year and to engage with his peers more so than in previous years.
In cross-examination, Mr Y confirmed that X’s school report for 2021 was positive and complimentary.
Mr Y observes the father to be an engaged parent supportive of the school and its approach to X’s education with communications being appropriate, easy, relaxed and open. In this sense Mr Y contrasts his and the school’s interactions with the mother prior to late 2021.
Mr Y relates further contact by the mother with the school despite the banning order, a restraint order, and orders of this Court where the mother has, either directly or indirectly communicated with the school and/or attended at the school on a number of occasions.
At [24] of his affidavit, Mr Y summarises X’s relationship with the school thus:
I confirm that [X] is a valued member of the [B School’s] community and the School is committed to continuing his education through to the end of Year 6 in 2023, provided that the restraint against [the mother] continues and that all parental interaction with respect to [X] is with his father. This condition is necessary to protect the health and wellbeing of School staff.
Ms AA
Ms AA was a senior staff member at B School, City S between 2015 and 2020. She provided an affidavit sworn 9 November 2022 which was read into evidence without being required for cross-examination.
Ms AA’s evidence focused on an event of late 2020 when she was advised the father had arrived at the school to collect X but where X was upset and refusing to go with the father. X had locked himself in her office. This event happened during school hours. The school prepared for a full lockdown including anticipated contact of Tasmania Police.
Ms AA reports that the father refused to leave the school without taking X with him and X remained visibly upset. X said that he was fearful of the father.
The father, his partner, and their child V, later left the school.
Dr CC
Dr CC is a psychologist of considerable experience and breadth of practice.
Dr CC engaged with X through telehealth (Dr CC resides in Queensland) consultations between late 2020 and early 2022 on a frequency of every three to four weeks.
Dr CC provided an affidavit for the ICL sworn 17 October 2022. Dr CC gave evidence and was cross-examined.
Dr CC considered he and X to have developed a close rapport evidenced by X himself requesting of the ICL to re-engage with Dr CC earlier this year.
Dr CC reports X in his first session as being relaxed and telling the psychologist that he suffered autism, ADHD, and is gifted. X related symptoms and diagnoses similar to that understood by the mother at the time.
X conveyed that he had a poor relationship with his father and a preference to live with his mother. He demonstrated “an undercurrent of fearfulness of being in his father’s home and anger towards his father” [14].
At [16] Dr CC reports X “expressed that he felt his father did not want him and only wants him, so he does not have to pay child support”. X was nine years of age at that time. In cross-examination Dr CC agreed that he was cautious of such remarks from a nine year old who was attending the sessions from his mother’s home and occasionally with his mother. Nevertheless, Dr CC’s evidence was generally of a child of some intelligence and informed and mature in his wishes and preferences.
Dr CC saw X’s mother as supportive and empathetic of X’s diagnoses.
Dr CC was unaware that X’s diagnoses have now been questioned or disavowed.
Dr CC related his limited conversations with the father including two requests from Dr CC to the father as to payment for continuing consultations with X were such that that he did not receive a response.
Dr CC is firmly of the view that X would benefit from a continuing engagement with a psychologist and preferably not himself where he is resident in Queensland and where face‑to‑face consultations would be favoured.
Dr CC was questioned as to the appropriateness and viability of a regime for X in accordance with his stated preferences in the recent Specific Issues Report along the lines of an equal time arrangement. Dr CC was familiar with the concept of parallel parenting but recognised the toxic relationship between these parents and whose views of X’s needs and their responses to those needs sit more subjectively than objectively with Dr P’s sense of X that he adapts to the expectations of each of his parents in their respective homes.
Ms BB
Ms BB is an Occupational Therapist who engaged with X fortnightly throughout 2021. She provided an affidavit dated 25 October 2022. She gave evidence and was cross-examined.
It is clear Ms BB was sympathetic to and perhaps partisan to the case of the mother. Her relationship with the father was limited where the father did not continue the professional relationship for X with Ms BB when the child came to live with him. Ms BB describes a confronting telephone conversation with the father.
Ms BB provided occupational therapy for X based on a history provided by the mother together with diagnoses obtained by the mother. Ms BB “prescribed” X’s use of a mobility aid. Her professional opinion was that X benefited from the use of the equipment.
At [13] of her affidavit, Ms BB describes the mother as follows:
While [X’s] mother can be intense due to being neurodivergent herself with diagnoses of Autism Spectrum Disorder and ADHD, this is not in a negative way. From what I have observed she is simply a mother that is trying to advocate for her children so they can participate fully in mainstream life regardless of their disabilities.
Ms BB was critical of B School and their dealings with her and X. Again, she presented as very sympathetic to the mother in this respect.
Generally, I viewed Ms BB in the witness box to be professionally defensive and lacking in objectivity and hence place little weight on her evidence.
The Family Consultant – Ms DD
Ms DD prepared a family report dated 23 August 2020 followed by a supplementary Specific Issues Report dated 21 October 2022.
Ms DD continues to recommend that X remain living primarily in the care of the father.
Ms DD gave evidence and was extensively cross-examined.
In her supplementary report at [30] Ms DD observes:
[X] reported that he would like to be with his parents equally. He suggested with his mother from Thursday until Saturday, with his father on Sunday to Wednesday and choosing who he would like to stay with whomever he wanted each Wednesday, sometimes his mother and other times his father. [X] reported thinking that this would work “pretty well” and might be better than now. [X] said that this would allow him more time with his mother which he would like but also reported that he would also like it if there was “no pressure placed on him regarding this”. When discussing with [X] the practicalities required for this arrangement to work, and the currents (sic) constraints to such an arrangement, he agreed that it was impractical and likely to lead to conflict regarding his wishes each Wednesday. [X] was clear in his opinion that he could be “more himself” in his father’s care and that he preferred his father’s care over being in his mother’s primary care for this reason.
At [27] Ms DD opines that it was clear that X found transitioning between his parents stressful and difficult.
The report indicates that X was well aware, and probably reactive to, the toxic relationship between his parents.
Significantly, in respect of the viewpoint of his parents, Ms DD reports X at [28] thus:
On having aids at school […], X reported believing that he was learning better without them and said “I don’t think I needed those aids”. X reported he would likely have to have them again if he were in his mother’s care. X reported as having two additional medications when he is in his mother’s care.
THE SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit to X of having a meaningful relationship with both of his parents
This is a primary consideration but not one which is determinative of the living and parenting arrangements for X.[8]
[8] Champness & Hanson [2009] FamCAFC 96.
The adjective “meaningful” and the term “benefit” each reference a consideration of quality for the child’s relationship with both his mother and his father. That is, the task for the Court is of a qualitative rather than quantitative one. Further, the consideration is a prospective one in the sense of benefit for X into the future but obviously based on an assessment of past and current facts.[9]
[9] Mazorski v Albright (2007) 37 Fam LR 518; McCall & Clark (2009) FLC 93-405.
The material before me, and in particular the Family Report and later Specific Issues Report, indicate that X enjoys a close, loving and bonded relationships with each of his parents albeit in circumstances where he himself suggests that he must act differently in each of his parents’ households due to their expectations of him.
The orders now sought by each of the parents would permit X sufficient time with the non‑primary parent so as to maintain his established and meaningful relationships with each of them.
Section 60CC(2)(b) the need to protect X from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence
This consideration is very much at the crux of the matter before me where later amendment to the section at s 60CC(2A) mandates the Court place “greater weight” on this consideration than on subsection 2(a).
It is the father’s case that the mother presents as an unacceptable risk for X in over-servicing his medical needs and/or being unwilling to accept professional advice contrary to her own set views in respect of X’s diagnoses and needs and that this in turn presents risks in the form of physical, psychological and emotional harm.
The mother makes allegations of family violence perpetrated on her by the father for the duration of the relationship and post separation. There are two reported police family violence orders against the father and protecting the mother from 2011 and 2013.
The family report details the mother’s issues in respect of family violence. However, these issues were not agitated before me with any force, or at all, in the sense of either the mother or the father being cross-examined. They are, of course, now historical issues where the parties have been separated for some 11 years although where their relationship remains conflictual and toxic and perhaps indicative of some corroboration of the mother’s stated historical concerns.
The father, although not tested by cross-examination, effectively denies the allegations against him.
Section 60CC(3)(a) any views expressed by X and any other factors such as his maturity and level of understanding that the court thinks relevant to the weight which would be given to his views
The strongest likelihood is that X suffers various diagnoses such as autism and ADHD. He is, however, described as highly intelligent and therefore an 11 year old prima facie able to rationalise his own preferences and views in respect of his living and parenting arrangements. Any such views, however, must be seen within the important context of the conflictual relationships between his parents which, on the evidence before me, is recognised and understood by X where he feels that he must adapt his own personality and lifestyle to each of his parent’s homes and their expectations of him.
Section 60CC(3)(b) the nature of the relationship of X with each of his parents and other persons
X appears to have forged his own form of relationship with each of his parent’s dependent upon whom he is with and given their diverse viewpoints and parenting styles. Dr P recognises that X might believe himself to suffer a disability when he is with the mother but where the evidence suggests that X is more active when with the father.
Section 60CC(3)(c) and (ca) the extent to which each of X’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in respect of X; to spend time with X; to communicate with X and to maintain X
The mother here has shown a propensity to act unilaterally and often in breach of court orders. She has withheld X on a number of occasions from the father. The father says the mother has acted unilaterally in obtaining medical diagnoses for X. In all other respects, these parents are keen in their parenting of X.
Section 60CC(3)(d) the likely effect of any changes in X’s circumstances, including the likely effect on him of any separation from either of his parents or any other child, or other person, with whom he has been living
X has developed relationships with each of his parents and other adults and children in those households. Each of the party’s proposals would continue those relationships for X.
X has now lived primarily with his father for in excess of 12 months. A change and return to the mother’s household would expose X to the stringent viewpoints of his mother and his stepfather and may, dependent upon the adults’ acceptance of the more recent medical opinion, see a return of the focus for X being on his perceived or actual needs rather than a more holistic lifestyle.
Section 60CC(3)(e) the practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis
This is not a relevant consideration in these proceedings.
Section 60CC(3)(f) the capacity of each of X’s parents and any other person to provide for the needs of X, including emotional and intellectual needs
This is a fundamental consideration for the Court where the parents hold very different viewpoints as to X’s special needs, if any, and their responses to those needs.
Dr P holds concerns that X understands or has formed a belief as to him having special needs and responses by reason of the views held by his mother whereas equally Dr P understands the father to be more ambivalent to X’s needs. Obviously, the capacity of these parents and their insight into the needs of their son requires a proper and objective understanding of X’s needs.
The Court holds some concern as to the attitude of the mother and, in particular, the mother’s husband, Mr C, in respect of X’s needs to have and enjoy a relationship and identify with both sides of his family. The lack of insight shown in the witness box by the mother’s husband, Mr C, in respect of X referring to him as “dad” in circumstances where he has frequent contact with his biological father and given the conflict between the households is disturbing as is Mr C’s blatant articulation of his personal dislike of X’s father and perhaps evident in the comments attributed to X to his father such as “you are just a sperm donor”.
The best evidence before the Court is that X is now functioning at his school to a high standard both academically and socially where such was not previously evident when he lived primarily with his mother. Further, the mother’s confrontational attitude to that school and resulting in a short disenrollment for X (and his siblings alike). Undoubtedly, the mother subjectively believes that she is justified in the conflict that occurred with the school and the various complaint that she has made but the result is that she is, for all practical purposes, no longer able to provide X with a school in which the evidence suggests that he is settled and excelling.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of the parents, and of any other characteristics of X that the court thinks are relevant
The parties here agree, and it seems confirmed by Dr P, that X is an intellectually gifted child. If this is so then these parents would be wise to focus on the gifts afforded their son rather than lumbering him with the obvious impact of their own personal conflicts.
Section 60CC(3)(h) if X is an Aboriginal or a Torres Strait Islander child
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to X, and to the responsibilities of parenthood, demonstrated by each of X’s parents
No doubt, subjectively each of these parents would justify their positions in respect of X. The evidence suggests that the mother has acted only in accordance with formal diagnoses. Nevertheless, her viewpoint currently in the witness box is best described as equivocal in respect of more recent and less stringent diagnoses for X. Certainly, she is, both explicitly and implicitly, critical of the father’s attitude to what she perceives as X’s high level special needs. Similarly, an issue remains as to the father’s more laissez-faire attitude to X’s needs and whether this is in any part a personal reaction to the mother’s own viewpoints?
Section 60CC(3)(J) and (k) matters of family violence and family violence orders involving X or members of X’s family
These matters have been dealt with above and were not pursued with any rigour at the trial.
Section 60CC(3)(l) whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to X
Most importantly, whatever orders this Court makes, the parties need to understand that such orders are made with an eye to X’s best interests and based on a weighing of the evidence given and adduced to the Court. It follows that the parents should then adhere to those orders unless there be a substantial or material change in circumstances for X or either of the parents. The more recent practice, in particular of the mother, in withholding X is potentially of some real emotional harm to X and may result in more stringent orders being made by this Court.
Similarly, if each of the parents maintains a primarily subjective viewpoint in respect of X’s needs then the dispute between them is likely to continue where such dispute is, in my view, due at least in a large part to the poor personal relationship between the parents rather than an objective reaction to their son’s needs.
Findings and CONCLUSIONS
On the evidence I am able to find that X has a strong love for and attachment to each of his parents. It is clear, however, and as emphasised by Dr P, that X’s experience in each of his parent’s homes differs dramatically and in accordance with the expectations of each of those parents. X himself has articulated this situation. Put simply he is expected to be effectively an invalid and a child of high physical and emotional needs in his mother’s home consistent with her understanding of his various conditions and diagnoses. To the contrary, his experiences in his father’s home have a greater freedom and sense of normality consistent with his father’s doubts as to previous diagnoses for X.
The mother herself says that she suffers probable ADHD and/or autism. The evidence suggests that she does at least carry the traits of these conditions. She is forthright and entrenched in her views. She is highly vigilant. She is aggressively reactive to any person doubting her views or holding contrary viewpoints and most notably in her reactive responses to X’s school.
Should X remain in the care of his mother then it seems inevitable that there would be a change of school for him and in circumstances where I am satisfied that he is now progressing very well both academically and socially at his current school and without the intrusion of his mother or Mr C.
Should X remain with his father, however, then he would be able to continue at his current school with his now established peer groups and stability from a school which, on the evidence, I find is understanding and sympathetic to X’s needs.
On the evidence before me, and most notably in the most recent family report, and although somewhat equivocal, I find that X’s preference would be to remain living with his father.
The attitude of the mother and her husband, Mr C, towards the father is disturbing. They are almost entirely negative of him and hence of his relationship with X. Mr C, in particular, is vitriolic in his dislike of the father and showed a complete lack of insight in respect of issues such as encouraging X to refer to him as “dad”. I am not persuaded, therefore, that X’s relationship with his father would be encouraged should he remain living in the mother’s household.
The mother’s attitude generally, and shared by Mr C, is perhaps best evidenced by her more recent propensity to blatantly over hold X in breach of court orders.
Whilst the father also exhibits a palpable dislike of the mother, his evidence suggested that he would be more objective and accommodating of X’s relationship with the mother and her children should X remain living in his primary care. Importantly the father’s partner, Ms G, was relatively an outstanding witness in this matter in her objectivity and insight to X’s needs and his complex relationships with others. I find that Ms G would be an extremely positive influence and role model for X.
Whilst X does exhibit special needs, I generally accept the evidence of Dr P and Dr CC in respect of both his physical and psychological needs. In this sense I prefer that the father is more capable and shows more insight into addressing those needs than does the mother. Notably the father in the witness box was convincing in his evidence that he would continue to consult appropriate medical practitioners and experts in respect of X against a background where he himself has shown some aggression and some negativity towards various experts.
X has now been living with his father, Ms G and his siblings in that household since about late 2021 and continuing, with some relative success, his schooling at B School. The stark difference in the attitudes and role models in the competing households suggests that a move back for X to live primarily with his mother would cause him some significant adjustment difficulties.
For all of these reasons, I am persuaded on the balance of probabilities that X should remain living primarily with his father and spend time with his mother in accordance with the father’s proposal.
Given the toxic and suspicious relationship between the parents together with their diametrically opposed attitudes and responses in respect of X’s needs, it is inevitable that the father should have sole parental responsibility for X on appropriate notice provisions to the mother.
Although these orders will provide the father with sole parental responsibility, the mother’s historical attitude towards her perception of X’s needs is such that she should explicitly be restrained from taking X to any doctor or behavioural scientist without the express written consent of the father and I will order accordingly.
The father’s application seeks orders for limited but block time during school holidays. Given X’s generally strong relationship with his mother and his desire to spend time with her, I am of the view that a more normal and equal sharing of school holidays is appropriate and I will order that X spend week about during the long summer holidays between his parents and for one half of each of the term school holidays subject to variation between the parents.
I certify that the preceding two hundred and seventeen (217) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 24 January 2023
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