Groft & Anor and Dominique and & Anor

[2017] FamCA 136

FAMILY COURT OF AUSTRALIA

GROFT AND ANOR & DOMINIQUE & AND ANOR [2017] FamCA 136

FAMILY LAW – CHILDREN – Previous final orders – Presumption for equal shared parental responsibility in interim hearing.

Family Law Act 1975 (Cth)

Goode & Goode [2006] FamCA 1346

FIRST APPLICANT:	Ms Groft
SECOND APPLICANT	Ms Mason
FIRST RESPONDENT:	Mr Dominique
SECOND RESPONDENT:	Mr Pullen

FILE NUMBER: SYC 6764 of 2014

DATE DELIVERED: 10 March 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 8 December 2016

REPRESENTATION

COUNSEL FOR THE FIRST APPLICANT: Mr Freeman

SOLICITOR FOR THE FIRST APPLICANT: Phontos Legal

COUNSEL FOR THE SECOND APPLICANT:	Mr Freeman
SOLICITOR FOR THE SECOND APPLICANT:	Phontos Legal
SOLICITOR FOR THE FIRST RESPONDENT:	Reid Family Lawyers
SOLICITOR FOR THE SECOND RESPONDENT:	Reid Family Lawyers

Orders

1. The interim or procedural orders sought by the Applicants by their Application of 8 August 2016 are dismissed;

2. The interim or procedural orders sought by the Respondents by their Response filed 16 September 2016 are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Groft and Anor & Dominique and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6764 of 2014

Ms Groft

First Applicant

And

Ms Mason
Second Applicant

And

Mr Dominique

First Respondent

And

Mr Pullen

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns a potential change to the parenting and care arrangements for B (the child), who is 7 years old.  In December 2015, final consent orders were made for the child to live primarily with Ms Groft and Ms Mason (‘the mothers’) and to spend time with Mr Dominique and Mr Pullen (‘the fathers’).  I will continue to use this description in the judgment because that is the way that the parties were described in the hearing before me.[1]  Given the previous making of the consent orders, each of the current parties are persons who may apply for a parenting order pursuant to s 65C, either by virtue of being a parent or a person concerned with the care, welfare or development of the child.

   [1] The parties made no reference to the possible effects of s 60H in assessing who the child is the child of.

2. Each of the parties seeks changes to the current orders.  The major change sought by the mothers is as to whether the child will spend overnight time with the fathers in accordance with the final orders, or whether the overnight time will be suspended pending further hearing.  There is no suggestion that the child’s time with the fathers ought to be suspended entirely.  The major change sought by the fathers is as to parental responsibility.  Currently the mothers jointly hold parental responsibility, other than as to educational matters, which is also shared by the fathers.  The fathers ask for equal shared parental responsibility and a restraint upon the mothers in relation to the child attending medical specialists.  They further seek the reappointment of the previous single expert,  Dr C.

3. The change in overnight time is sought because it is asserted that the child has special needs that mean that he cannot cope with overnight time.  It is asserted that the overnight time with the fathers increased his anxiety and that the withholding from overnight time has alleviated the anxiety.  The anxiety is disputed by the fathers.

4. The fathers assert that the mothers have pursued a diagnosis of the child to justify a change in the final orders and that the attendances upon the various medical practitioners are not in his interest.

Documents Relied Upon

1. A list of the documents relied upon by each of the parties that is annexed to the end of this judgment.[i]

History

1. Consent orders were made in December 2015.  The relevant effect of those orders was that the fathers would have overnight time with the child that would incrementally increase across 2016.  It appears common that there was general compliance with this regime, such that the child spent the following time with the fathers:

   a)Until March 2016, alternate weekends from Friday until Sunday afternoon, alternate Thursday overnight and alternate Thursday afternoons;

   b)Until September 2016, alternate weekends from Friday until Monday and alternate Thursday overnight.

2. In August 2016 the mothers filed an application to suspend the overnight time.

3. In September 2016 the time was due to transition such that the child would spend every Thursday overnight with the fathers rather than alternate Thursday nights.  This did not occur.  The last overnight time the child spent with the fathers was 13 October 2016.  It appears that the child is still spending time with the fathers, although not overnight.[2] 

   [2] Ms Mason 6.12.16 [5(m), 15(g)]

Reasons for the change to the final orders on an interim basis

1. The mothers seek a suspension of the overnight time on the basis that the child has now been determined to be autistic and cannot adjust to overnight time, that he must have control over his environment and that he requires a stable routine and environment.[3]  The effect of overnight time is asserted to be a high level of anxiety manifesting itself in behaviours that could be harmful to the child.  The mothers rely in particular upon the report of Dr D in order to identify both the autism and the appropriate response to the autism.

   [3] Oral submissions

2. Dr D’s report of 4 August 2016 is attached to his affidavit of 31 October 2016.  He is a Consultant Developmental Paediatrician.  The height of his assessment of the child was that there is evidence of “high functioning autism spectrum disorder which would probably be better described as having a social pragmatic communication disorder”.  It appears to have been reported to him that there had been recent changes to overnight and access visits and of anxiety on the child’s part.  It is unclear what was asserted to be the recent change at that stage, as the last changes occurred in March 2016.

3. His recommendations were for regular consistent routines, and for the child to be referred to Ms E, a psychologist.  The fathers pursued such a referral, which was apparently resisted by the mothers.  The mothers took steps to significantly alter the child’s routine by ending the overnight time he had with them.  There was no recommendation from Dr D that the overnight time be curtailed, nor an opinion that the overnight time was problematic.

4. Even if accepted at face value, Dr D’s report did not, on its own, provide support for the suspension of overnight time.

5. The parties identified that the following sources contain the material from which I will derive information about what is, or is not, going wrong with the child as a result of the overnight time:

   a)The mothers’ affidavits;

   b)The fathers’ affidavits;

   c)Material obtained from the F House, in particular the reports completed by Ms G (the child’s teacher in 2016) at Exhibits M1 and M17;

   d)The letter from Dr H (General Practitioner for the child and the mothers) reporting on her interview with the child;

   e)The report of Dr I (psychologist).

6. Generally, the affidavits of the mothers were relied upon to show that there was an anxiety problem for the child stemming from overnight time with the fathers.  The affidavits of the mothers were a difficult mix of assertions, opinion, evidence and submission.  They appeared to have been prepared without regard to the requirements set out at Chapter 15 of the Rules.  They were argumentative and contained opinion from persons not qualified to give the opinions.  Despite these inadequacies in their preparation, it is important to identify the matters of substance contained within them.  That task was rendered difficult by virtue of the non-compliance with the Rules.

7. The affidavit of Ms Groft contained general assertions of improvement of demeanour and confidence for the child since the ending of overnight time.  Aside from [133], where a specific incident is referred to in September of 2016 of the child resisting going on overnight time, any problem for the child is at best a general assertion.

8. Likewise, the affidavit of Ms Mason at [5] made general assertions, including the child’s greater confidence at school, a lack of melt downs regarding attending at school, more energy and less need for supervision for homework.  Ms Mason gave more specific examples of improvements, such as the child liking his new teacher and being more positive about a visit to her family.  Ms Mason asserted a lack of protest on the child’s part re visiting the fathers (for day times).  This was, on her description, an improvement over the child’s attitude to overnights.

9. More specifically I was directed to two particular examples that are said to show harm to the child as a result of anxiety from overnight time.  One related to an incident where the child cut the shirt that he was wearing while at school.  Counsel for the mothers described this as an incident whereby the child had cut his shirt proximate to his heart.  This was, it seems, presented in this manner in order to establish that the child was in danger.  Exhibit M16 contains the clearest reference to this incident.  The relevant extract is an email from Ms G, (the child’s teacher) to Ms J – (staff F House):

   I am stunned that they would try and use the child cutting a hole in his shirt so he can “poke his belly” as part of this (typical 6 year old behaviour).

10. The fact of the cutting of the shirt, even if proximate to the heart, does not carry with it an inference of risk stemming from anxiety.  This view is supported by the teacher’s description of it being merely childish play.

11. The second example related to a risk said to stem from the child spinning while at school.  There is a reference to this behaviour at Exhibit M1.  It is unclear from the document who made the notation, which is recorded as “spins on bottom?”.  The clearer reference, from Ms G, appears at Exhibit M17, which records at 19 July 2016 that the child “spins on floor” at a frequency compared to other pupils the same age of “pretty much/often”.  There is evidence that on one occasion the child had injured himself while doing this resulting in the need for an ice pack.[4] This did not show a particular risk to the child.  Even though it may have resulted in injury on an occasion, it appears innocuous. 

    [4] Ms Mason 6.12.16 [130]

12. Even if either of these could be said to demonstrate risk, there is no link shown between either the shirt cutting or the spinning to an anxiety said to stem from overnight time with the fathers.

13. While the mothers each appear to hold the strong view that there is a connection between the overnight visits and issues with the child, there is little if any basis upon which such an inference could be drawn.

14. Dr H’s opinion appears to draw heavily from the mothers’ assessment.  The belief she expressed regarding anxiety appears to wrongly rely on such a view being held by Dr D.  Her interview with the child is not accompanied by any explanation of expertise, or description of the content or circumstances of the interview.  I am unable to place any weight upon it as demonstrating a risk from overnight time. 

15. Mr Dominique’s affidavit material generally accepts some degree of anxiety on the part of the child, asserting that it settles [23]. He deals with incidents of meltdown at school and sets out surrounding circumstances [21], [44] and particular information regarding the shirt cutting incident [27]. He deals with specific incidents of the child becoming teary.

16. Mr Pullen’s affidavit added little, although it dealt specifically with an incident in June 2016 when the child was missing the mothers.

17. Dr I’s report noted positive relationships between the child and each of the mothers and fathers.  There appeared to be a differential in the child’s anxiety between the two households and she noted that the child’s anxiety may be sensitive to parenting style.  At this interim stage of the proceedings I am unable to conclude whether this is right or wrong.

18. The fathers’ case for the change in respect of parental responsibility and for the restraint in relation to medical specialists hinges largely upon the conduct of the mothers in consulting medical practitioners in the course of the conflict in respect of overnight time, and in resorting to the parental responsibility orders to justify a with-holding of the child.

19. In particular, reference was made to Dr I’s observations of an excited response by Ms Mason to a potential diagnosis of autism as it would justify an application to the Court.  The inference sought was that the excitement revealed an underlying motivation relating to court proceedings rather than a concern for the treatment of the child.

20. In relation to the use of parental responsibility to subvert the orders, by letter of 21 October 2016[5] the solicitors for the mothers advised the solicitor for the fathers that the overnight time would be withheld unless the fathers could provide a reasonable basis to the contrary.  Ms Mason appears to rely on the allocation of parental responsibility to suspend the overnight time with the child.[6]  Similarly, Ms Groft at Annexures A and B[7] and Ms Mason at Annexure I[8] appear to rely on the allocation of parental responsibility to with-hold the child.

    [5] Ms Groft 31.10.16 p65

    [6] Ms Mason 6.12.16 [18]

    [7] Ms Groft 31.10.16

    [8] Ms Mason 6.12.16

Discussion

1. In this case there are final orders in place regarding the child.  Those orders deal with both the arrangements for the child moving between the two households and how parental responsibility is allocated.

2. While a significant question may arise as to whether the child’s best interests are met by further litigation in relation to these matters, or are met by a curtailment of this litigation,[9] that issue is yet to be addressed by the parties.

   [9] Marsden & Winch [2009] FamCAFC 152 at [40-56]

3. In the resolution of the interim proceedings it is necessary to follow the structure of the Act.

4. Firstly, in these interim proceedings it is not appropriate to apply the presumption of equal shared parental responsibility.  The current arrangements for the allocation of parental responsibility have come about as a result of orders made by consent.  The current orders remain operative unless displaced by further orders.  In order to displace the operation of the current orders, it will be necessary to demonstrate that an interim arrangement that differs from the current orders is in the child’s best interest.  Under those circumstances, it is inappropriate to apply the presumption.

5. While there is evidence by which it may be inferred that the mothers’ consultation with medical practitioners is for the purpose of changing the current court orders, there is a conflict in the evidence as to why the assistance is sought.  That is, it is an unresolved matter as to whether the attendances are purely forensic in character.  In this case the mothers explain the attendances upon medical practitioners as necessitated by what they assert are difficulties experienced by the child.  Further, a desire to change court orders is not of itself inconsistent with the best interests of a child.  In this case, the mothers’ position is that the current orders are not in the child’s best interests.  Additionally, there is insufficient evidence to show that the child’s attendances upon medical specialists have been deleterious to him.

6. As to the potential use of parental responsibility to justify a breach of orders for the fathers to spend time with the child, it ought be clearly understood that allocation of the major part of parental responsibility to the mothers does not act as such a justification.  Leaving the parental responsibility as it is does not empower the mothers to disregard the orders as they relate to the time the child is to spend with the fathers.

7. The material filed by each of the parties makes plain that there is little scope for cooperation between the parties on decision making for the child.  Currently the bulk of the responsibility is held by the mothers who, on any case, will retain the majority of the care of the child.  This arrangement limits the need for cooperation.

8. The evidence, in the context of interim proceedings in which there is limited capacity to assess controversial matters and make factual findings, does not establish that it is in the child’s interest for an alternative order for parental responsibility to be substituted for the current orders.

9. It should not be thought that this gives tacit approval to taking the child to a number of doctors to further the litigation process.  The Court is simply not yet in a position to assess both whether this has occurred and whether it has been deleterious to the child.  These may be matters to be determined at a final hearing if one occurs.

10. Similarly, the current orders regarding the time that the child is to spend with the fathers remains operative unless it is shown that other orders are in the child’s best interest.  In assessing whether other orders are in his best interest and, in particular, whether the regime sought by the mothers in their application is in his best interest, it is important to bear in mind the restrictions faced by the Court in dealing with interim proceedings.  That is, the Court “should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.”[10]

    [10] Goode & Goode [2006] FamCA 1346 at [68].

11. In this case, the question of  whether overnight time causes the child harmful anxiety in the context of questions as to whether he is autistic is a controversial matter.  The evidence, in particular from Mr Dominique and Dr I, does not support such a conclusion.  The evidence presented by Mr Mason, Ms Groft and by Dr H, even absent contest from Mr Dominique and Mr Pullen, falls far short of establishing either the presence of such anxiety or its connection to overnight time.

12. The evidence of Dr D, which formed a critical part of the mothers’ case, does not recommend the cessation of overnight time as sought by the mothers.  It does not connect the overnight time to any problem that might be experienced in the context of the diagnosis given.

13. Accordingly, it has not been established that an order other than the current final orders is in the child’s best interest.

Other orders sought

1. The fathers sought the reappointment of the previous Single Expert, Dr C.  At present, it is premature in the proceedings to deal with the appointment of a single expert.  Otherwise, the fathers restricted their orders sought to those set out in the outline of case, which approximated orders 2-7 as sought in their Response filed 16 September 2016.

2. In their application for interim orders, the mothers sought further orders that were not the subject of submissions, and are outside the current orders.  As best as I am able to determine, these relates to the use of social media.  I am unable to determine, on the current state of the evidence, why such orders are necessary to promote the child’s best interest.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 10 March 2017.

Associate: 

Date:  10 March 2017

[i]
The Applicant  mothers relied upon the following:

1.        Ms Mason’s affidavit sworn 6 December 2016 and filed 7 December 2016.

2.        Ms Groft’s affidavit sworn 31 October 2016.

3.        The affidavit of Dr D sworn 31 October 2016.

4.        The affidavit of Dr H.

5.        Exhibits M1-M18

The Respondent fathers, relied upon the following:

1.        The affidavit of Mr Dominique sworn 16 September 2016

2.        The affidavit of Mr Pullen sworn 16 September 2016

3.        The affidavit of Ms G, sworn 16 September 2016

4.        The affidavit of psychologist Dr I.

5.        Exhibits F1-F9