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
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…
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- AGLC
- Griffiths & Porter [2023] FedCFamC1F 3
- Case
- [2023] FedCFamC1F 3
- Decision Date
CaseChat Overview and Summary
In the matter of Griffiths & Porter, the court was tasked with determining the living and parenting arrangements for X, a child born from the union of the mother and father. The parents had separated in 2011 and had been engaged in a series of legal disputes regarding X's living arrangements, with orders previously made for equal shared parental responsibility and specific visitation schedules. The case involved complex issues regarding X's diagnoses, the mother's mental health conditions, and the impact of the parents' contentious relationship on X.
The court had to decide whether X should continue living with his father or return to his mother, considering X's best interests under s 60CA of the Family Law Act 1975 (Cth). Key issues included the mother's reliability and credibility, her and Mr C's negative attitudes towards the father, and the impact of these attitudes on X. Additionally, the court needed to assess the father's capacity to meet X's needs, the role of Ms G, the father's partner, and X's own preferences and current stability at his school.
The court found that X had strong attachments to both parents but that his experiences in each household differed significantly. The mother's diagnosis of probable ADHD and/or autism, along with her entrenched and highly vigilant nature, raised concerns about her ability to adapt to changing diagnoses and expert opinions. Mr C's extreme assertiveness and lack of insight further complicated the situation. The court concluded that the mother's negative attitude towards the father and her propensity to overhold X were detrimental. In contrast, the father appeared more objective and willing to accommodate X's relationship with the mother. The father's partner, Ms G, was viewed as a positive influence. Ultimately, the court found that X's preference, albeit somewhat equivocal, was to remain with his father, and it was in his best interests to continue living with him.
The court ordered that X should live with the father and spend time with the mother under supervised arrangements. The mother was prohibited from enrolling X in a new school without the father's consent. The decision emphasised the paramount importance of X's stability and well-being, particularly in the context of his current school environment and established peer relationships.
The court had to decide whether X should continue living with his father or return to his mother, considering X's best interests under s 60CA of the Family Law Act 1975 (Cth). Key issues included the mother's reliability and credibility, her and Mr C's negative attitudes towards the father, and the impact of these attitudes on X. Additionally, the court needed to assess the father's capacity to meet X's needs, the role of Ms G, the father's partner, and X's own preferences and current stability at his school.
The court found that X had strong attachments to both parents but that his experiences in each household differed significantly. The mother's diagnosis of probable ADHD and/or autism, along with her entrenched and highly vigilant nature, raised concerns about her ability to adapt to changing diagnoses and expert opinions. Mr C's extreme assertiveness and lack of insight further complicated the situation. The court concluded that the mother's negative attitude towards the father and her propensity to overhold X were detrimental. In contrast, the father appeared more objective and willing to accommodate X's relationship with the mother. The father's partner, Ms G, was viewed as a positive influence. Ultimately, the court found that X's preference, albeit somewhat equivocal, was to remain with his father, and it was in his best interests to continue living with him.
The court ordered that X should live with the father and spend time with the mother under supervised arrangements. The mother was prohibited from enrolling X in a new school without the father's consent. The decision emphasised the paramount importance of X's stability and well-being, particularly in the context of his current school environment and established peer relationships.
Orders
Orders of the court
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Background
Background to the litigation
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).
Evidence
Evidence Before The Court
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 EVIDENCEThe 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.
Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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