HENDERSON & CHOPKE
[2011] FamCA 631
•8 August 2011
FAMILY COURT OF AUSTRALIA
| HENDERSON & CHOPKE | [2011] FamCA 631 |
| FAMILY LAW – CHILDREN – Parenting orders – Application of Part VII where competing proposals of a parent and non-parent – Best interests of the child – Where the child’s mother has died and the child has been cared for by both his father and his maternal grandmother. FAMILY LAW – CHILDREN – allegations of family violence – notifications to the Department of Communities (Child Safety) – section 60CC(2)(b) – no sufficient evidence to suggest a need to protect child from physical harm in the care of his father – potential psychological harm caused to child by both parties – where both parties found to denigrate the other in front of the child. FAMILY LAW – CHILDREN – With whom a child lives – Where the child has been diagnosed with a range of medical difficulties – capacity of each party to provide for the child’s needs. |
| Family Law Act 1975 (Cth) |
| Aldridge v Keaton [2009] FamCAFC 229 Chantness v Hanson (2009) FLC 93-407 Donnell v Dovey (2010) FLC 93-428 Hort v Verran [2009] FamCAFC 214 Marsden v Winch(No 3) [2007] FamCA 1364 Mulvany v Lane (2009) FLC 93-404 Potts v Bims [2007] FamCA 394 |
| APPLICANT: | Mr Henderson |
| RESPONDENT: | Ms Chopke |
| FILE NUMBER: | BRC | 4639 | of | 2007 |
| DATE DELIVERED: | 8 August 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 27, 28 and 29 July 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr M Pieterse |
| SOLICITOR FOR THE APPLICANT: | Hooper Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mrs J Farr |
| SOLICITOR FOR THE RESPONDENT: | Cogill Woods Legal Services Pty Ltd |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr G Pohlmann |
Orders
That all prior parenting orders in relation to the child, D Henderson-Chopke (“D”), born 7 February 2002, be discharged.
That D live with the Father and that the Father have sole parental responsibility for D’s long-term care, welfare and development.
That the Father and Maternal Grandmother have sole responsibility for making decisions about the day to day care, welfare and development of D during periods when D is living with them.
Time
That the Maternal Grandmother spend time with and communicate with D at all times as agreed but failing agreement as follows:
(a)From 10.00 am until 3.00 pm on each of Saturday 13 August 2011; Saturday 27 August 2011; and Saturday 10 September 2011 at S Park, Brisbane Suburb 1, with changeovers to occur at Location 1 within the park;
(b)From 10.00 am Saturday, 24 September 2011 to 3.00 pm Sunday, 25 September 2011 and fortnightly thereafter until the provision in (c) below takes effect, with changeovers to occur at the mainland ferry terminal for ferries to and from Island 1 provided that with respect to the first such overnight period it will be spent at a motel within ten (10) kilometres of the said terminal and the Maternal Grandmother shall notify the Father by e-mail or text message by 5.00 pm Wednesday 21 September of the name and address of such motel;
(c)Commencing on and from the beginning of the school term gazetted for Queensland for 2012 during school terms, from after school on Friday until 4.00 pm Sunday commencing on the third weekend of the school term and each third weekend thereafter on the basis that if D is attending or is due to attend school on Island 1 on Friday of the commencement of such weekend, changeover at commencement is to occur as soon as practicable after school and no later than 4.30 pm at the mainland ferry terminal for ferries to and from Island 1 but if D is attending school at the Autism Centre at Brisbane Suburb 2 on such a Friday, the Maternal Grandmother shall collect D from that Centre after school and in all cases the Maternal Grandmother shall return D at the conclusion of such periods at the mainland ferry terminal for ferries travelling to and from Island 1 by 4.00 pm on the Sunday;
(d) For the first week of the June/July school vacation period in even- numbered years and the second week of such vacation period in odd- numbered years with such periods to commence at 10.00 am on the Saturday and conclude at 5.00 pm on the Sunday with changeovers to occur at Location 1 within S Park, Brisbane Suburb 1;
(e)Commencing with the 2012 Christmas school vacation period, for one week commencing 12 noon, 17 December and concluding 12 noon 24 December in even-numbered years, and for one week from 12 noon, 26 December, until 12 noon, 2 January in odd-numbered years, with all changeovers occurring at Location 1 within S Parklands, Brisbane Suburb 1;
(f)That D shall always spend Father’s Day weekend with the Father and in the event that this weekend falls on a weekend that D is otherwise due to spend time with the Maternal Grandmother, then his weekend with his Maternal Grandmother shall occur on the following weekend; and
(g)If for any reason any scheduled period of time for D to spend time with the Maternal Grandmother pursuant to these Orders does not occur as scheduled, then the Maternal Grandmother shall nominate in writing an alternative and equivalent period of make-up time with changeover times and places to be in conformity with the times and places scheduled and the Father shall ensure that such substituted time occurs. Such substituted times as nominated shall, for the purpose of interpretation of this Order, be a “scheduled period” within the meaning of this Order.
Communication
That the Maternal Grandmother be at liberty to communicate with D by telephone as follows:
(a) Commencing 17 August 2011 each alternate Wednesday between 6.00 pm and 6.30 pm;
(b) On D’s birthday between 6.00 pm and 6.30 pm;
(c) On Christmas day between 6.00 pm and 6.30 pm.
That the Maternal Grandmother shall initiate all such telephone calls to D, with such calls to be made to the Father’s landline number.
That the Father shall ensure that D is available to speak with the Maternal Grandmother at such times. The Father shall ensure that D has privacy to speak with his Maternal Grandmother during such telephone communication in a quiet and private location.
That the Father authorise any school attended by D to give to the Maternal Grandmother information about D’s educational progress and other school related activities and supply her, at her expense, with copies of school reports, photographs, certificates and awards relative to or obtained by D.
That the Father and the Maternal Grandmother shall each encourage and foster D’s relationship with the other.
That the Father refrain from:
(a) Denigrating or criticising the Maternal Grandmother to D or allowing any third party to denigrate or criticise the Maternal Grandmother within the presence or hearing of D;
(b) Discussing with D any proceedings (save and except for the effect of the terms of these Orders insofar as the Orders affect D) that relate to D; and
(c) Discussing adult issues with, or within the presence or hearing of, D.
That the Maternal Grandmother refrain from:
(a)Denigrating or criticising the Father or Ms C to D or allowing any third party to denigrate or criticise the Father or Ms C within the presence or hearing of D;
(b)Discussing with D any proceedings (save and except for the effect of the terms of these Orders insofar as the Orders affect D) that relate to D; and
(c) Discussing adult issues with, or within the presence or hearing of, D.
Other
That the Maternal Grandmother be restrained from attending upon any medical practitioner with D unless D suffers serious illness or injury whilst in her care requiring urgent medical attention, and further, that the Maternal Grandmother shall notify the Father forthwith of any such medical emergency.
That the Maternal Grandmother be restrained from contacting any medical practitioner upon whom D has attended for treatment.
That the Father and the Maternal Grandmother shall advise the other in writing of any change of address and/or telephone number within five (5) days of such change.
That the Father is restrained and an injunction issue restraining the Father from relocating D’s residence further away from the Maternal Grandmother’s current address than his current residence on Island 1.
That neither the Father nor the Maternal Grandmother use physical discipline on D and/or permit any other person to do so.
That the Father and the Maternal Grandmother keep each other informed of their landline telephone number from time to time and each shall provide the other with a mobile telephone number to enable text messages to be received and the parties shall communicate as necessary via text messages and not by causing D to relay any messages.
That the Father cause any psychologist or paediatrician or other medical professional engaged in providing therapy or any cause of treatment for D to provide a short form summary report of that therapy or treatment at intervals sufficient to keep the Maternal Grandmother fully and adequately informed as to any medication or other assistance D requires from any carer when D is in their care and the Father shall cause copies of such reports to be provided to the Maternal Grandmother as soon as practicable after each is received. .
IT IS NOTED that publication of this judgment under the pseudonym Henderson & Chopke is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 4639 of 2007
| Mr Henderson |
Applicant
And
| Ms Chopke |
Respondent
REASONS FOR JUDGMENT
Introduction
Life has presented D Henderson-Chopke (“D”), born in February 2002, who is the child the subject of these proceedings, with some significant challenges.
When D was only about twelve months of age in about February or March 2003, his late mother Ms J was diagnosed with brain cancer. The progression of that disease resulted in the tragic death of the Mother in 2005, when D was barely three years of age. Thus, D was thereafter denied the unique love, care and support his mother could provide.
To make matters worse for D, he has historically been diagnosed by medical and health professionals with a range of medical difficulties. Whilst these are discussed further below, on the evidence before me, D has been diagnosed from time to time with the following:
·Autistic Spectrum Disorder
·Pervasive Developmental Disorder – Not Otherwise Specified
·Borderline Asperger’s
·Attention Deficit Disorder and Attention Deficit Hyperactivity Disorder
·Oppositional Defiant Disorder
·Attachment Disorder
·Separation anxiety
·Encopresis
·Possible Obsessive Compulsive Disorder
A report dated 30 July 2010 from Ms P, the Head of Special Education Services at School 1 provides some insight into the impact of his diagnosis of Autistic Spectrum Disorder on D’s development. Relevant extracts from that report are as follows:
“[D] is an eight year old boy who has attended [School 1] Special Education Program on a full-time basis for the past two years. He has a verified diagnosis of Autistic Spectrum Disorder, which has an impact upon all areas of his development, and is especially significant in the areas of behaviour, socialisation and academics.
Although [D] has good speech and expressive language, he lacks the social skills which enable him to communicate effectively with those he is involved with. He has difficulty in modulating the pitch and volume of his voice, making his verbal speech sound very loud and aggressive.
When verbally interacting with others, he tends to talk at them rather than to them, and is only interested in what he has to contribute, finding it extremely difficult to listen to others and acknowledge their opinions and ideas.
[D] faces significant difficulties relating to his peer group in an appropriate manner. He insists on being in control of every situation, and is not willing to allow other children the opportunity to have input into games or information sharing. To gain and maintain his control, [D] tends to bully the other children, both physically and verbally, which has made it extremely hard for him to form and maintain solid friendships.
…
During formal learning lessons, [D] appears disinterested in learning and lacks motivation. He is highly distractible, has a short concentration span and experiences great difficulty in maintaining focus on topics which are not within his personal realm of interest. As with most ASD children, he has an aversion to writing, which he finds tedious and time-consuming.
[D] has poor organisational skills, and is reliant on a strict routine and adult encouragement and support to ensure he has all the equipment he requires for each task throughout his school day and to enable him to successfully complete given tasks. Although he works hard to be the centre of attention, he has little confidence in his own ability when it comes to academic achievement and self-worth. [D] requires extended time to process information and act accordingly.
…
[D] is a child who portrays many of the classic tendencies experienced by children who are on the spectrum. He enjoys the company of adults who are willing and able to attend to him exclusively. He experiences great difficulties when in a group situation, and although his social skills have shown vast improvement over the past few years, he continues to have issues in a social situation.
…
Overall, [D] is a young boy with ASD who experiences regular mood swings which have a detrimental effect on the challenges he faces on a daily basis.”
As Mr Andrew, Counsel for the Independent Children’s Lawyer, records in his written submissions (at paragraph 34):
“34. It is further opined by these medical professionals that these diagnoses impact upon [D] profoundly affecting his behaviour both at home and at school and that he finds it extremely difficult to deal with change, has low frustration tolerance, limited maturity and multiple developmental problems. Further, [D] is described as being inclined to wander and put himself at risk. At various times, [D] has bashed other children, attacked the headmaster, stolen, lied, taken knives to school, played with matches (setting fire to clothing) and played with razor blades. Further, [D] is described as being hardly able to read or write.”
I will refer further below to the impact of D’s difficulties, but against this background, it would be hoped that two significant adults in D’s life, namely his Father and his Maternal Grandmother, his closest living biological relatives, would have successfully engaged in co-operative efforts to promote his welfare and for D to thus have the experience of two people he loves acting in concert to promote his wellbeing. Unfortunately, the reverse is true in terms of D’s actual experience.
On the evidence before me, it is painfully obvious that the Father and the Maternal Grandmother are engaged in intractable conflict. The position is now reached where the Maternal Grandmother seeks Orders for D to reside with her; and that she have parental responsibility with respect to making decisions about long-term issues concerning D’s education and health; and D spend time with the Father for half school holiday periods and one weekend per month; amongst other specific Orders sought. For his part, the Father initially sought to retain sole parental responsibility and for there to be Orders for D to spend weekend time with the Maternal Grandmother, albeit effectively on D’s terms, as is further discussed below. However, by the conclusion of the trial the Father adopted the Orders proposed by the Independent Children’s Lawyer.
On the history of this matter since soon after the Mother’s death, it seems clear that the parties have not been able to establish, even with the benefit of Orders, workable arrangements for them to both be involved in D’s life in a consistent and cooperative way and rather than them both being a source of support, collectively, for D, their entrenched conflict in and of itself presents yet a further challenge for him who, against the background referred to, is hardly in need of any such challenge.
Relevant History and Background
The Maternal Grandmother, Ms Chopke, was born in 1937 and is thus now seventy-four years of age. The Father, Mr Henderson, was born in 1949, and is thus now aged sixty-two years. As already noted, D was born in February 2002, and his mother, Ms J, passed away in 2005 soon after D had turned three years of age.
The Father and the late Ms J married in 2003, which was very shortly after the Mother had been diagnosed with cancer. It seems that in about July 2004, after the Mother’s diagnosis, her family, then comprised of the Mother, the Father and D, moved from Victoria to live at A Street on Island 1 in Region 1. Thus, at the time of the Mother’s death, D had been living with his mother and the Father at their residence on Island 1.
As to the marriage between the Father and the Mother, whilst the Maternal Grandmother deposes in paragraph 16 of her affidavit filed 16 May 2011 that these parties, “married [in] 2003”, she was apparently “vague about whether the parties ever married” when interviewed by Mr Z for the first Family Report attached to Mr Z’s affidavit filed 3 December 2003 (paragraph 21) and in her oral evidence, expressed some doubts about whether there was ever a legal marriage. In her oral evidence, the Maternal Grandmother suggested that she did not even know anything of a marriage until well after the Mother passed away, which was of course more than two years after the event. She also suggested in her oral evidence that the Mother herself may not have had sufficient cognition because of her treatment to understand that she was entering into a legal marriage, if that is what occurred. However, given the Father’s unequivocal evidence on the point and the fact that the Maternal Grandmother deposes to a marriage in her affidavit, I accept that there was a marriage between the Father and the Mother. Moreover, it seems that as that marriage occurred soon after diagnosis of the Mother’s condition rather than shortly prior to her death, it would be unlikely that the Mother would be or remain unaware or not have intended to marry the Father as implied by the Maternal Grandmother.
This issue seems to be associated with another issue as to what, if any, discussions were held between the Mother, the Father and the Maternal Grandmother prior to the Mother’s death as to the role envisaged for the Maternal Grandmother with respect to D. In her affidavit evidence, the Maternal Grandmother deposes as follows:
“20. In the period leading up to The Mother’s death, as she became too ill to do things for herself, my involvement with D’s care increased.
21. After [the Mother’s] death, I endeavoured to play a role in [D’s] upbringing, having assured [the Mother] just prior to her death that I would do this. [The Father] was present on many occasions when we all discussed what [D’s] future would hold after [the Mother] passed away. [The Father] acknowledged to [the Mother] his commitment to my close and constant involvement in raising [D]. However, this proved difficult because [the Father] did not co-operate and constantly asked me for money before he would allow [D] to spend time with me. …”
In her oral evidence before me, the Maternal Grandmother’s evidence on this issue was variable. At one point she suggested that on more than one occasion prior to the Mother’s death, it had actually been agreed that D would in fact live with the Maternal Grandmother in the event of the Mother’s death. Then in her oral evidence the Maternal Grandmother equivocated on whether any agreement meant that D would actually live with her but she ultimately returned to that as her evidence on the point. The Father disputes this, and has consistently told Mr Z, the Family Report writer, and as it appears in paragraph 9 of his affidavit filed 10 May 2011 as follows:
“9. Before [the Mother] passed away in 2005, she asked me to ensure that D had a relationship with [the Maternal Grandmother]. I told [the Mother] that I would do this, however shortly after [the Mother] died I found [the Maternal Grandmother] difficult to deal with, and we clashed on many issues concerning [D’s] health, and the time [the Maternal Grandmother] would spend with [D].”
There is some evidence that, as is the Father’s version, there may have been at least some tension in the relationship between the Mother and her mother, the Maternal Grandmother. Aside from the fact that the Maternal Grandmother apparently did not even know of the fact of the marriage as referred to above, one of the documents tendered in evidence before me is Exhibit 27, being the Brisbane Suburb 2 Child Safety Service Centre File including an assessment by the Department in 2006 in response to a notification. That file includes reference to the Department making contact on 7 September 2006 with a Dr M, who was reported to be the Mother’s doctor as well as D’s doctor. The relevant part of the file note in relation to that contact reads as follows in relation to what Dr M then told the Department:
“- She was [D’s] mother’s doctor as well.
-That [D’s] grandmother drove the mother mad as she was interfering all the time.
…”
To some extent, this corroborates the Father’s version to the effect that the late Mother had at least some difficulties with the Maternal Grandmother’s capacity to involve herself in matters contrary to the Mother’s desires and I prefer the evidence of the Father to that of the Maternal Grandmother as to any agreed involvement of the Maternal Grandmother so far as D’s living arrangements were concerned subsequent to his mother’s death. In other words, I accept that it was agreed by all, including the Mother, that the Maternal Grandmother should have some continuing involvement with D, but I do not accept that there was ever an agreement entered into by the Father that D would actually live with the Maternal Grandmother.
Following the Mother’s death, the summary of the parties’ respective positions seems to be that the Maternal Grandmother experienced increasing difficulties in continuing or maintaining involvement in D’s care. For his part, the evidence of the Father is that he had increasing difficulties securing the co-operation of the Maternal Grandmother in keeping to arrangements. The Father’s affidavit evidence, which was unchallenged in cross-examination on this point, contains examples of arrangements being made for D to spend time with the Maternal Grandmother, but of there being a failure on the part of the Maternal Grandmother to keep to those arrangements (see, for example, paragraphs 12 to 17 of the Father’s affidavit filed 10 May 2011).
It appears that by about September 2006, against the background of the increasing problems referred to, Ms C became part of the Father and D’s household. Ms C describes herself as the paid carer for the Father, who is on a disability support pension. The Father and Ms C depose to the fact that, many years ago, they were involved in an intimate relationship, but both have given evidence before me that they are not and have not been in a de facto or intimate relationship subsequent to the Mother’s death. There is, it seems to me, no forensic need for me to determine the exact nature of the relationship between the Father and Ms C, it being enough to observe that Ms C has been part of the Father’s household and D’s life since 2006 and can now be regarded as a person significant to D’s care, welfare and development.
In September 2006, the Father, D and Ms C moved from their home at Island 1 to live in Town 1 in north Queensland. The Father gave evidence before me to the effect that during what started out as a holiday or trip to north Queensland he identified a potential site at a boatyard in Town 1 which might enable the Father to pursue self-employment as a tradesman. Between about September 2006 until about January 2008, the Father, D and Ms C lived on a land-based boat in a boatyard in Town 1; then for a short period again at Island 1 and then between early 2008 until towards the end of 2010 in a mobile home located in the Town 1 boatyard, before again returning to Island 1 where they currently reside.
On 18 April 2007, the Maternal Grandmother commenced proceedings in the Federal Magistrates Court at Brisbane, seeking, inter alia, an Order that D reside with her. Consequent upon those proceedings, the first of the Family Reports provided by Mr Z was prepared on 27 November 2007. Ultimately, Consent Orders were made on a final basis between the Father and the Maternal Grandmother on 8 February 2008, which provided for D to live with the Father and for the Maternal Grandmother to spend time with D at defined times and to have regular telephone communication at defined times. Those Orders were predicated upon two alternatives as to whether the Father and D were living at Island 1, or alternatively in Town 1.
The Maternal Grandmother deposes to uncertainties she had as to where D was or would be living as at the time that the Consent Orders were made. She points to the feature that the Father provided a Notice of Address for Service at Island 1, amongst other reasons, for understanding that D would be actually living on Island 1 after the Consent Orders of 8 February 2008 were made. In the event, as already noted, it appears that the Father, D and Ms C either remained living in Town 1 or returned to Town 1 soon after the Orders were made. Further reference is made to this aspect of the matter below, but suffice to note here that significant problems continued with respect to the Maternal Grandmother spending time with D in circumstances including the fact that she resided at Town 2, whilst D was residing in Town 1.
In 2007, D had commenced his preparatory year of schooling at School 2 in Town 1. It appears that during that year, there began to be some signs of D exhibiting difficult or unusual behaviours at school. He apparently had some angry interactions with other students and with teachers and he was prone to smear his faeces on walls, which were problems the school became concerned about. However, at that point, it does not seem that any formal diagnosis of any problem with D had been made, and I note that whilst the first Family Report prepared by Mr Z, dated 27 November 2007, refers, at paragraph 62, to the Father reporting to Mr Z some behavioural problems at school attracting discipline from the teacher, this is referred to as being largely in respect of D’s relationship with other children and there is no reference to any medical diagnosis.
In 2008, D attended grade one at School 1 in Town 1. In April 2008, Ms K, a Speech Language Pathologist, undertook a speech pathology assessment of D and Ms K’s report dated 14 April 2008 is exhibit 12. In summary, Ms K identified that D had a number of deficits with respect to language, such that Ms K assessed a mild expressive and receptive language delay, but a severe delay in D’s sound awareness development.
Also in April 2008 (on 17 April 2008), D’s general medical practitioner, Dr Y, referred D to the Town 1 Psychological Service (the Town 1 Child and Youth Assessment Centre) specifically to Ms A, Registered Psychologist. Ms A undertook assessments of D on 10 and 23 April 2008 and on 7 May 2008. Ms A’s report, dated 9 May 2008, is Exhibit 3. It seems that by the time of Ms A’s report, D was being treated by paediatricians (Dr B/Dr C) for problems he had developed with encopresis. According to the history given by the Father to Ms A, D’s teacher in class had noticed a deterioration in D’s behaviour on Thursdays and Fridays each week after the Wednesday telephone call from the Maternal Grandmother provided for in the Consent Orders already referred to. The Father reported to Ms A that D had become more demanding and was exhibiting tantrums after the telephone calls on Wednesday afternoon, taking until Sunday to settle down.
I note at this point, the Maternal Grandmother has significant reservations with reports being prepared with what might be described as “one-sided” inputs only from the Father and without her involvement. Whilst that is certainly a legitimate concern for the Maternal Grandmother to hold, it seems to me that Ms A’s reports and opinions were clearly not confined to the history the Father provided, given the objective testing undertaken by Ms A. That is a matter identified by Dr T, consultant paediatrician. Apart from her own clinical assessment, Ms A had regard to the Speech Pathology Assessment performed by Ms K, and undertook cognitive assessment of D via the Wechsler Preschool and Primary Scale of Intelligence-III Australian being, as described by Ms A in her report, an individually administered clinical instrument for assessing the intellectual function of children within various age groups. Ms A also applied testing for behaviour assessment, including the Conners Rating Scales, including participation by D’s class teacher, Ms B, in completing that assessment. In relation to the teacher’s input, Ms A records in her report:
“[Ms B’s] report of [D’s] behaviours resulted in Markedly Atypical or clinically significant results on all the following scales – Social Problems, Cognitive Problems/Inattention and the DSM-IV scales of Inattention. [D’s] teacher’s result on the Conners Global Index Restlessness Impulsive and DSM-IV Scales Hyperactive Impulsive and Total were Moderately Atypical.”
Ms A assessed D with Attention Deficit Hyperactivity Disorder of a type making D extremely vulnerable to D developing a Learning Disorder and noted this to be reflected in his then struggle to advance academically as well as his behaviour problems. Ms A thought D to be, “…a highly vulnerable child at a significant risk of psychological problems.” I have regard to the full summary set out in the report (Exhibit 3) albeit with the qualification that the Maternal Grandmother had no input into the history provided.
Much of the history given by the Father to Ms A for the first report was related to the Father advancing to Ms A speculative views to the effect that it was contact with the Maternal Grandmother that triggered adverse reactions and behaviours in D. It appears that the Father related to Ms A that the onset of D’s encopresis, for example, was causally related to D having telephone contact with the Maternal Grandmother. I do not accept, in the absence of medical opinion with input from the Maternal Grandmother, that the causal relationships speculated upon were established. There were also concerns raised about D’s capacity to travel from Town 1 to stay with the Maternal Grandmother at Town 2 and “fears” expressed by the Father as regards D, concerning generally the capacity of D to cope with the provision for time to be spent with the Maternal Grandmother pursuant to the final Consent Orders already referred to.
In the event, following Ms A’s first report dated 9 May 2008, the June/July 2008 school holiday visit D was to have with the Maternal Grandmother did not eventuate. The Maternal Grandmother deposes to what she says occurred at paragraph 47 to 57 of her affidavit filed on 16 May 2011. On her version, having flown to Town 1 to collect D, the situation was reached that D was boarding the plane with the Maternal Grandmother for the return flight, but because the Father insisted on escorting D onto the plane and continued to hold onto him, D became upset and because the Father refused to let go of D’s hand, he was effectively prevented from boarding the plane. On the Father’s version (paragraph 40 of his affidavit filed 10 May 2011), D refused to board the plane for the school holiday visit and the Father there denies, as he repeated in his oral evidence, that he clung to D’s hand on that occasion, refusing to let go. This is one of the many instances of changeovers where the versions are diametrically opposed as to what actually occurred, but as I will discuss below, I am satisfied that whatever is the exact truth of what occurred on this and many other similar occasions, more could have been done by the Father, or done differently, to enhance the prospect that the contemplated holiday time proceeded in accordance with Court Orders because of any refusal by D.
Ms A undertook assessments on 6 December 2008 and 24 January 2009 for her second report dated 2 February 2009, which is Exhibit 4. By that stage, D was under the care of Dr T, paediatrician, and Dr T had commenced to see D on 16 June 2008 and had reviewed D on two further occasions prior to Ms A’s further assessment. By the time of Ms A’s further assessment, Dr T had assessed D as demonstrating Pervasive Developmental Disorder (Not Otherwise Specified) of mild level, and noting this diagnosis, Ms A confirmed that this diagnosis fits within the Autistic Spectrum Disorders. In her second report, Ms A noted that D presented with a wide constellation of symptoms, including behavioural and emotional problems also congruent within the Autistic Spectrum Disorders. Again, some of the views expressed by Ms A in her second report must be viewed in the light that there was no input by the Maternal Grandmother. I note in particular Ms A’s discussions about insecure attachment with the Maternal Grandmother, but this is based entirely on a history provided by the Father and/or Ms C, with perhaps some limited input from D.
That aspect aside, Ms A sought “feedback” from D’s then class teacher at School 1, Ms P, and an affidavit from Ms P is before me. Again, Ms A undertook a mental state examination, as well as behaviour assessments using the clinical tool of the Conners Rating Scale, which incorporated the input from D’s class teacher. Ms A diagnosed D as suffering from Pervasive Development Disorder; Oppositional Defiant Disorder; Attention Deficit Hyperactivity Disorder and Separation Anxiety Disorder, although it must be said that the last of these diagnoses seems to depend heavily upon the accuracy of the history provided.
In this respect I note that Dr T, paediatrician, gave oral evidence before me in addition to her affidavit and report. Dr T confirmed in her oral evidence that none of the diagnoses of D concerning his Autistic Spectrum Disorder; Pervasive Development Disorder; Oppositional Defiant Disorder; Attention Deficit Hyperactivity Disorder or Encopresis depend upon history. Dr T referred in her oral evidence generally to the diagnostic tools administered to D to determine the existence of these diagnoses. I accept Dr T’s evidence.
Pursuant to the Final Consent Orders, the Maternal Grandmother was due to spend two weeks of the June/July 2009 school holidays with D. It appears that the Maternal Grandmother was limited to spending two hours at Location 2 on the Sunshine Coast with D when the Orders envisaged that she would spend a two week period. Again, the Father asserts that D did not wish to go to stay with his grandmother. Whilst the Maternal Grandmother concedes that D wanted to go to Island 1 first to see his house (which by then he had not seen for some time as he had been living in Town 1), the Maternal Grandmother deposes that D said to her that he would stop and stay with her on the return journey to Town 1, and that he would stay for the balance of the holidays. In the event, this simply did not occur. Whilst I have not attempted to address each and every “missed” visit, I mention this one as an example of the diametrically opposed versions of the parties regarding either aborted visits or visits which simply did not occur, on the Father’s version simply because D said he did not wish to go with his grandmother.
Dr T, Consultant Paediatrician, was D’s treating paediatrician between 16 June 2008 and 6 July 2009. Dr T’s report is Exhibit 7 in these proceedings. Subsequent to Dr T’s last clinical visit with D on 6 July 2009, it appears that Ms C contacted Dr T on 6 August 2009. By that stage, D was with Ms C in Sydney attending a centre called “[Centre 1]”. As Dr T notes in her report, this is apparently a centre for the assessment and management of children with Autistic Spectrum Disorder. In the event, Dr T provided to that centre, via Ms ZZ, a registered psychiatrist at that Centre, a referral which is Exhibit 6 in these proceedings. It confirmed Dr T’s diagnoses of D (which I accept as accurate) as follows:
·ADHD (Attention Deficit Hyperactivity Disorder)
·ODD (Oppositional Defiant Disorder)
·PDD-NOS (Pervasive Development Disorder – Not Otherwise Specified)
·Encopresis
·Separation Anxiety/Attachment Disorder
·Speech and Language Disorder (“dyslexia”)
It appears that the Father and/or Ms C were pursuing solutions for D’s problems and decided to pursue the involvement of the Centre in Sydney referred to, including the involvement of a Dr KK and Ms ZZ. Ms ZZ’s assessment of 29 July 2009 is Exhibit 1 in these proceedings, and her report of 28 August 2009 is Exhibit 2. Exhibit 2 concludes with the paragraph as follows:
“it has been noticed that on the days that his grandmother ([Ms Chopke]) telephones him, [D’s] behaviour regresses, and that it takes nearly two days to settle him down. This is especially noted on the two occasions that [D] has attended the practice following these phone calls. He is inconsolable, emotionally distraught, and entirely disrupted during his sessions. This is not normally what we encounter with [D]. Therefore, it is requested that [D’s] grandmother ([Ms Chopke]) comply with a request to telephone him once a month so that the current interventions and modifications to his behaviour can be well-established without interruption by stressful episodes.
It is anticipated that the frequency of contact between [D] and his grandmother can be adjusted accordingly once [D’s] behaviour is within normal limits.”
I note that Exhibit 2 is a letter addressed to Federal Magistrate Baumann, at a time when there were then, so far as I am aware, no proceedings on foot. On 22 December 2009, the Father commenced the current proceedings seeking to change the Orders of 8 February 2008. That Initiating Application was returnable in the Town 1 circuit sitting of the Federal Magistrate’s Court on 15 March 2010.
The Maternal Grandmother was due to have time with D for the 2009/2010 Christmas school holiday period. Again, there were considerable difficulties making arrangements for this to occur. In the event, despite all that occurred previously, D in fact spent a three week period with the Maternal Grandmother at her home in Town 2 from 27 December 2009 until 17 January 2010.
On 15 March 2010, the first return date of the Father’s application referred to, Interim Consent Orders were made as well as Orders for the appointment of an Independent Children’s Lawyer. Between 6 April 2010 and 10 April 2010, D spent time with the Maternal Grandmother at her residence at Town 2, pursuant to the Court Order, and this occurred again between 6 April 2010 and 10 April 2010, and again between 26 June 2010 and 3 July 2010. In this period, on 18 May 2010, Mr Z prepared an updated Family Report, which I will refer to further below.
On 15 September 2010, the parties having been unable to reach informal agreements on D spending time with the Maternal Grandmother for the September/October school holidays and beyond, an interim hearing on a contested basis proceeded before the Federal Magistrates Court. It seems that an Order was then made for D to spend time with the Maternal Grandmother from Saturday 18 September 2010 to Saturday 25 September 2010. Changeover was ordered to take place at the Town 1 Airport, with the Maternal Grandmother to fly to Town 1 to collect D and return to her home in Town 2. In the event, Mr LL, from Anglicare, attended at the changeover, and I have an affidavit from Mr LL and he was cross-examined on his affidavit concerning this changeover, which is discussed further below. Suffice to note here that the ordered time for that holiday did not proceed.
In about November 2010, the Father, Ms C and D relocated from Town 1 back to live in the Father’s residence on Island 1. With that event, correspondence ensued from the Maternal Grandmother’s legal representatives to the Father, referring to the February 2008 Orders as being once again operative because of the changed residence of D.
On 2 January 2011, there was a changeover at Location 3 on Bribie Island, when D went into the care of the Maternal Grandmother, and she drove D back to her home in Town 2. At paragraph 101 of her affidavit, the Maternal Grandmother deposes to events on the evening of 5 January 2011 where, at about 8.00 pm, she refused D permission to go out on his scooter to the park by himself at 8.00 pm in the evening. This resulted in D telling the Maternal Grandmother, “I don’t have to listen to you. You are not going to bully me.” With that, D apparently telephoned his father, telling him he wanted to go home. D thus returned to the care of his father on the following day from 6 January 2011, thus spending a total of four days with the Maternal Grandmother in circumstances where the arrangement was that D would be spending half of the holiday period with her. In relation to this event, it appears that the Maternal Grandmother acquiesced in D returning home to his father.
Arrangements were made directly between the Maternal Grandmother’s legal representatives and the Father for a changeover to occur on 20 January 2011 at the Brisbane Suburb 3 ferry terminal for D to spend time with the Maternal Grandmother. Whilst the Father, Ms C and D attended for that planned changeover, as did the Maternal Grandmother, D then expressed to the Maternal Grandmother that he did not wish to go with her. The Maternal Grandmother refers to the circumstances in which that wish was expressed at paragraph 106 of her affidavit for trial.
Interestingly, the Maternal Grandmother’s affidavit filed 16 May 2011, in that part which sets out the history of visits from her perspective, does not there make reference to a visit which occurred in February 2011. At paragraph 84 of his affidavit filed 10 May 2011, the Father deposes that the Maternal Grandmother was, as per Court Order, due to spend time with D between 18 and 20 February 2011 and further deposes, “but as D was on virtual suspension from school, I offered to extend the stay if D wanted to stay longer.” Given all that had occurred to that point, and having regard to the Maternal Grandmother’s case, which is effectively that the Father has always done whatever he can to limit D’s time with the Maternal Grandmother, it is significant that, on this occasion, the Father made an agreement with the Maternal Grandmother that D would stay longer on the visit if he wanted to stay longer, and indeed that is what occurred.
However, on the evening of 22 February 2011, the Maternal Grandmother encountered a significant problem with D’s behaviour. At trial, the Maternal Grandmother was cross-examined at some length about this event as there was a tape recording of a telephone conversation that occurred on that evening at about 8.30 pm, when D rang the Father and Ms C from the Maternal Grandmother’s residence. The audio tape of that telephone conversation was played in the course of the Maternal Grandmother’s cross-examination. Suffice to note here that the recording evidences uncontrollable behaviour by D and occasions when he is screaming at the top of his voice to the Maternal Grandmother things such as, “Shut up!” whenever she attempts to enter into the conversation. The audio tape records that D is sobbing and crying and repeatedly telling his father he wants to come home and asking to be collected. As the Father points out to D repeatedly in the tape recording, at 8.30 pm in the evening, it was not possible for the Father to obtain ferry transport from Island 1 to travel to Town 2 to collect D. As Mr Andrew, Counsel for the Independent Children’s Lawyer describes at paragraph 36 of his written submissions:
“When the tape was played, at one stage the Maternal Grandmother stated that she tried to get [D] in the shower, and in response to this during the telephone call, [D] screamed, “No!”, and just generally screamed. Further in the telephone conversation, the Maternal Grandmother spoke about whether there was anything to give him ([D]) for sleep or to calm him down (this question was posed to the Father and [Ms C]). In response to this, [D], who was listening in, began screaming in what might be described as in a hysterical fashion. Further in the telephone call, when the Maternal Grandmother said that, “I’m listening,” [D] responded by screaming, again in what might be described in a hysterical fashion, “Shut up”. Shortly thereafter in the telephone call, the Maternal Grandmother said words to the effect of, “I have no idea what happened,” to which [D] responded screaming, “Shut up”.
It is recorded in the audio tape that the Maternal Grandmother said to the Father and Ms C that D had been behaving in this fashion for “two hours now”, that is, for two hours up until the telephone call was made. The Maternal Grandmother sought to resile from that time estimate in her cross-examination and also sought to resile from the clear inference that D had been in this hysterical/uncontrollable/tantrum state continuously for such a period prior to the call.
The Maternal Grandmother gave conflicting evidence surrounding this recorded telephone call. At one point, her evidence seemed to be to the effect that D was quite calm after an initial dispute between herself and D, and that he calmly went about the task of finding the address book so that he could call his father and that it was only when the call was initiated that D acted and sounded in the manner in which he did on the audio tape as described. I have already referred to the clear evidence on the tape where the Maternal Grandmother conveyed that D had been acting in “this” way for “two hours now”, whereas she attempted to resile from that estimate in the witness box. Of most significance about the Maternal Grandmother’s evidence concerning the tape is that at a later point in her cross-examination, the Maternal Grandmother suggested that D’s behaviour and manner of speaking as recorded on that tape was a performance or acting out and did not therefore truly reflect a distressed child.
I am in no doubt that the audio tape recorded a truly hysterical and upset D and I so find. I further find that the Maternal Grandmother could be in no doubt about that and as is reflected in her words recorded on the tape, she was at the time genuinely concerned about what she saw as a truly distressed child and her attempts in cross-examination to convey alternatives does her no credit, and I do not accept them.
At paragraph 169 of her affidavit filed 16 May 2011, the Maternal Grandmother deposed, in relation to this visit, that in terms of D’s behaviour it, “was a mixture of good times and terrible times. I have not experienced such bad behaviour from [D] in the past. At times during the visit, [D] was a charming and obedient boy, while at other times he was simply uncontrollable…” The Maternal Grandmother then provides, at paragraph 170, an example of D’s poor behaviour involving him, “taking off” on his scooter whilst the Maternal Grandmother was refuelling her vehicle at a service station and D ignoring her calls for him to come back. Apparently two men who were at the service station, “could not catch him ([D])” and one of them drove after D and came back to report to the Maternal Grandmother that he was waiting near the tennis courts. That information enabled the Maternal Grandmother to locate D. The Maternal Grandmother also refers to a further incident of bad behaviour at paragraph 171, and at paragraph 172 deposes, “These escalating incidents of poor behaviour by [D] are worrying.”
The Father confirmed in cross-examination that apart from the four days in early January referred to, and the further five days in February referred to, D has not otherwise spent time with the Maternal Grandmother this year.
In recording the above, I make it clear that I have not purported to make a comprehensive or complete summary of what has occurred with respect to each and every planned or Court-ordered or other visit or telephone contact between D and the Maternal Grandmother between the Final Consent Orders made on 8 February 2008 and now. Each of the respective affidavits of the parties are replete with many more instances than those to which I have specifically referred in the above. What I have attempted to do is to record a sufficient number of instances to illustrate the history in broad terms, but I make it clear that I have had regard to the whole of the affidavit and oral evidence of the parties and their witnesses in considering and determining the issues before me.
With respect to the many instances when D was to spend time with, or communicate with, the Maternal Grandmother since the Orders of 8 February 2008 and that either did not occur at all or was cut short, it is the Maternal Grandmother’s case, simply put, that responsibility for that rests entirely with the Father and Ms C. Her case, in essence, is that it is the malevolent influence of the Father and Ms C, in one form or another, that produces unwillingness on D’s part at any time that unwillingness has led to scheduled time or communication with the Maternal Grandmother either not occurring at all or being abridged.
The Maternal Grandmother relied upon the affidavit and oral evidence of Mr LL in this respect who supervised a changeover planned to occur on 18 September 2010 at the Town 1 Airport. Whilst I consider that it became clear from Mr LL’s oral evidence that he was somewhat aligned to the Maternal Grandmother and hence became somewhat of an advocate for the Maternal Grandmother’s cause, I accept his evidence to the extent that it shows no real effort to persuade D or divert or cajole him into a different view than that which he presented of not wanting to go with his grandmother. This is in contrast to the other settings, such as school attendance, where the Father and Ms C are plainly able to secure D’s cooperation, albeit with perhaps significant effort and resolve.
Having considered the evidence as a whole including the contents of Mr Z’s three Family Reports of November 2007, May 2010 and May 2011, I conclude that there are a complex constellation of factors in play, and a finding simply along the lines contended for by the Maternal Grandmother would ignore that complexity. Those factors include:
a)As long ago as November 2007 (when D was then not even six years of age) Mr Z, who then undertook interviews for the first of his Family Reports, assessed that D was then well aware of the dispute between the Father and the Maternal Grandmother. I accept that assessment and note, for example, that at paragraphs 122 and 123 of his first report, Mr Z records:
“122. After I had observed the maternal grandmother and [D] engaged very affectionately with each other, I asked [D], “Do you ever hear anyone say nasty things about each other?” He turned to the maternal grandmother and said, “Yes, grandma.” She protested, saying to [D], “No, I don’t do that.”, whereupon [D] said, “Yes, you do grandma.” I then asked him, “Does your dad say anything nasty about your grandma?” and his answer was, “They both do.”
123. It does seem to me that this boy has been exposed to some of the unpleasantness associated with this dispute, and I would suggest if D is behaving sometimes badly at school, that it is more to do with acting out as a result of some emotional turmoil arising from the dispute, rather than any reluctance on his part to have telephone interaction with the grandmother.”
b)There is no evidence to suggest the attitudes of the Father and Ms C to the Maternal Grandmother, and vice versa, have lessened over the years, and indeed there is significant evidence that positions have intensified and become entrenched. Given D’s cognitive development since November 2007, he is likely to have become ever-increasingly aware of this dynamic.
c)D has quite profound behavioural difficulties reflected in the formal medical diagnoses of him referred to above. Those difficulties render him prone to act in ways described by, for example, Ms P, in relation to school earlier referred to, and I note also the evidence of Mr AA, Principal of the Island 1 School concerning D’s suspension this year from that school. Mr AA gave evidence that D became angry and assaulted the Special Education Teacher by grabbing hold of her arm and twisting it. I infer that the Special Education Teacher would have received training specific to children with D’s problems and notwithstanding that, I accept the event occurred in the manner described by Mr AA. Likewise, I note Ms C’s evidence that when in a rage, D can look for “weak spots” in his then carer and in her case, she has sustained fractures to her toes on more than one occasion as a consequence of D’s behaviour. The Maternal Grandmother conceded to Mr Z in his most recent interviews that D had pushed her.
d)There is ample evidence before me, including that of Mr Z, that D’s moods can change virtually from moment to moment. At one moment he can appear content and relaxed and be co-operative; the next, in an angry outburst and uncooperative and virtually the next again, return to his original state. Both the Father and the Maternal Grandmother have experienced D “running away” when he is in their care.
e)The diagnosis of Oppositional Defiant Disorder probably speaks for itself. I accept Ms C’s description that sometimes the best way to achieve D acting in a desired way, or doing something a carer wishes him to do, is to ask him to do the opposite. I also accept Mr Z’s evidence at paragraph 56 of his May 2010 report that children with this disorder find it extremely difficult to deal with change in their life, and often show wilfulness and defiance in the face of instructions given by their parent figures.
f)The above matters compound the logistical and practical difficulties related to the geographical distance that has separated the parties throughout the relevant period. The Maternal Grandmother has resided in Town 2 whilst D, the Father and Ms C have resided, in the main, in either Town 1 or on Island 1 in Region 1. The latter can only be accessed via ferry from the mainland. In turn, those logistical and practical difficulties are compounded when the relevant adults are unwilling to speak or communicate with each other, and D finds himself as the conduit for messages, sometimes conflicting, being passed between the adults. A useful example is the telephone call of 17 February 2011, the audio tape of which was played in evidence before me. On any view, D was subjected to direct tension between the adults in attempting to formulate arrangements for a changeover. That was frustrating to listen to, let alone how it was likely perceived by D.
g)There is ample evidence, which I accept, which demonstrates that when in the care of the Maternal Grandmother, minor admonitions or discipline can result in D telephoning his Father to request or demand return to the Father. The January and February visits this year are examples.
h)No doubt the attitudes of the adults towards each other play a significant part. I will discuss those attitudes further below, but suffice to note here that I have no doubt the position has been reached, some time ago, when the Father and Ms C too readily embrace any expression by D of an unwillingness to spend time with his Maternal Grandmother or communicate with her and they do not “go the extra mile” in securing D’s cooperation; and D holds too much power to influence what ought to be the province of adults in terms of making care arrangements for him.
That the difficulties referred to cannot purely be the result of some malevolent influence by the Father and Ms C is demonstrated, in my view, by what occurred in the visits in January and February of this year. Whilst the Maternal Grandmother would have it that D suddenly remembered that he is supposed to misbehave when with the Maternal Grandmother (a memory she says, is implanted by the Father and Ms C), I find this to be inherently improbable. The fact is, that after some considerable time out of the influence of the Father and Ms C, D is prone to the same behaviours already discussed and reaches a firm decision to no longer stay with his Maternal Grandmother. In the February event, D had been for some days in the sole care of the Maternal Grandmother before he plainly became uncontrollable and was insistently screaming to be returned to his father as was heard on the audio tape. Only a fair and minor step in discipline by the Maternal Grandmother was enough to produce that result.
Aside from the issue of D being permitted to spend time with and communicate with her, the Maternal Grandmother puts in issue the Father’s capacity to care adequately for D and to generally meet his needs in a number of respects. I address those aspects further below.
Attitudes
There is plain and ample evidence before me that neither the Maternal Grandmother on the one hand, nor the Father and Ms C on the other, have anything approaching positive regard or respect for the other.
Maternal Grandmother’s Attitude to the Father
To say that the Maternal Grandmother has never enjoyed a good relationship with, and has a negative opinion of, the Father would be a gross understatement. At paragraph 129 of her affidavit filed 16 May 2011 the Maternal Grandmother deposes:
“…I have always endeavoured to communicate with [the father] in a polite and amicable manner, as many of my letters written to [the father] over the years will show. However, [the father] has never extended the same courtesy to me.”
While that might be true on one level; to the extent that this is an effort to persuade the Court that the Maternal Grandmother is at all times a voice of reason and acts reasonably, is not borne out on the evidence; nor does it take into account views which have been expressed by the Maternal Grandmother about the Father, as are well-known to him.
At the very first interview with Mr Z in November 2007, the Maternal Grandmother labelled the Father a “sexual pervert”. The basis (to the extent it can possibly be a basis) for such a view appears to be expressed in paragraph 93 of Mr Z’s first report as follows:
“93. The Maternal Grandmother seems convinced that the Father had entered on a sexual relationship with [Ms C], and that [D] appeared sometimes to show signs of inappropriate sexual activity having been observed. She described how [D] seemed one (sic) to have been referring to an erection and had once told the Maternal Grandmother that, “I want to see you naked grandma.”
It would appear that, simply from D’s statement, the Maternal Grandmother is prepared to conclude that the Father was prepared to permit or enjoyed D watching him perform some sexual act with Ms C. The readiness to draw such a conclusion from the words of a then approximately four year-old child (see following paragraph) speaks volumes.
In her oral evidence before me, the Maternal Grandmother seemed to convert this earlier assertion into one of child sexual abuse of D by the Father. She initially observed that the Father and D have an “unhealthy relationship”. Exploring that description resulted in the Maternal Grandmother expressing her belief that the Father has perpetrated actual sexual abuse (in some undescribed way) upon D. Asked to provide the bases for that conclusion, the Maternal Grandmother provided the following factors, in this order:
·The Father says D has to be with him 24 hours/7 days a week; (I interpolate here that this ignores D’s school attendance)
·That the Father was opposed to all visits;
·That on an occasion after the death of D’s mother, when the Father and D were staying with the Maternal Grandmother, she observed the Father and D sleeping together in one bed; (I interpolate here that D was then approximately three years old and he and the Father had recently experienced the loss of the Mother)
·That at an early age, D displayed awareness of sexual activity in that at about age three and a half to four years, D showed the Maternal Grandmother “how to get an erection” and that D asked to see the Maternal Grandmother naked.
Whilst I do not interpret the Maternal Grandmother’s case before me to be one of actively persuading the Court to make findings concerning alleged sexual abuse (no submission by Counsel for the Maternal Grandmother at the conclusion of the trial was to that effect), to remove any doubt I make it clear that on the evidence before me, I find that D has not been the victim of sexual abuse perpetrated by the Father. In support of that conclusion, I refer to the above as the only evidence presented, aside from the fact that the Maternal Grandmother has made several notifications to the Department of Child Safety and no investigation by that Department has substantiated any relevant risk. D has made no recorded disclosures to anyone of anything of that kind in circumstances where his Father has caused D to be seen by numerous medical professionals over the years. If it be thought in the circumstances the positive finding ought not be made, I would make the alternative finding that on the evidence before me, the Father poses no unacceptable risk to D of sexual abuse.
Taken from her affidavit filed 16 May 2011, the Maternal Grandmother ascribes the following descriptions to the Father:
·Inflexible
·He easily becomes frustrated
·Self-centred
·Lacks responsibility
·Dogmatic
·Shifts blame
·Moody
·A compulsive liar
Paragraph 203 expresses the Maternal Grandmother’s view that the Father is prepared to use D and his health difficulties for financial gain and wishes to ensure that D remains unwell for that purpose. Paragraph 203 reads:
“I also have concerns that [the Father] and [Ms C] have ulterior motives when it comes to [D’s] health and welfare. I believe that they are using [D] in order to receive more generous government benefits than they might otherwise receive if [D] was not diagnosed with various disorders. In short, I believe there are financial benefits for [the Father] and [Ms C] by having care of a child with disabilities. Thus, there is an incentive for them to ensure that [D] remains unwell in some respect as opposed to an incentive for his health and general welfare to improve.”
Another example of the Maternal Grandmother’s willingness to condemn the Father and share that condemnation in a way in which it would be obvious to her that it would come to the attention of the Father, was her evidence concerning the Father’s alleged involvement in drugs. Cross-examined about an affidavit filed 14 August 2007 in which the Maternal Grandmother raised the prospect that at the time he was living in Town 1, the Father was a “drug dealer”, the Maternal Grandmother explained that she had anecdotal evidence from some unnamed source that the boatyard in which the Father was then living was a place frequented by drug users. This was apparently enough for the Maternal Grandmother to form the view that the Father was or could be involved in drugs as a drug dealer. In her evidence before me, she repeated a current belief that it might be possible that this is so.
Whilst not part of her affidavit or oral evidence at trial, I note that Exhibit 27 reflects that when the maternal grandmother made one of her notifications in July 2007 to the Department, she then went so far as to suggest to the Department that the Father had involved D in his alleged drug dealing. Exhibit 27 relevantly includes:
“…the notifier also reported a suspicion that [D] has to help his father sell drugs. Child has said that he has to take care of Daddy and help Daddy earn money by ‘selling biscuits’.”
I record that as at July 2007 D had not long turned five years of age. It beggars belief that the Maternal Grandmother, even if D said what he is alleged to have said or, perhaps more accurately, particularly if D said that, would reasonably urge that conclusion on the Department in good faith.
Despite the contents of her affidavit filed 16 May 2011, to the extent that what is deposed to might suggest ready acceptance by the Maternal Grandmother that D indeed has the various diagnoses already referred to, the Maternal Grandmother’s oral evidence before me on this topic was, to say the least, troubling.
Mr Z most recently undertook interviews for the third of his Family Reports on 6 May 2011. In the report attached to Mr Z’s affidavit filed 11 May 2011, Mr Z records at paragraph 49:
“49. The maternal grandmother told me that she does not believe that [D] suffers from the conditions described by the father and [Ms C]. She believes that he requires only “love” and to be separated from the father who, with [Ms C], “brainwashes him” [maternal grandmother’s words].”
Further, at paragraphs 75 and 76, Mr Z records the following:
“75. Her comments were, “He needs recognition, love, a peaceful home”. When I asked her whether she thought [D] suffered from any “health conditions”, her answer was “I do not but he is definitely behind in his schoolwork”.
76. She described [D] as “an ambitious little boy”. When she made this comment, I did wonder how realistic she was in her assessment.”
I note that in advance of the trial, the parties jointly commissioned Dr W, consultant paediatrician, to provide a report. Dr W’s report dated 30 June 2011 is Exhibit 15. Dr W confirms in his report that he had reviewed D on two occasions and had reviewed, “…the voluminous correspondence from legal, medical, psychological, school and grandparental sources.” Dr W opines:
“I note that he has had numerous diagnoses in the past. I concur, at this stage, with the diagnosis of ADHD and Autistic Spectrum Disorder as a result of the information provided to me.
…
His major impulse control issues seem to be related to anger and aggressive behaviour. I feel he warrants constant regular review of this management, continuous involvement with psychological assessment and support for him and the family, and liaison with the current school.”
Dr W records referring D to the Hospital 1 for an EEG (at the request of Mr CC who is the psychologist currently seeing D).
Questioned in cross-examination about whether or not she believes D has the medical problems ascribed to him, the Maternal Grandmother gave conflicting evidence. At one point, she acknowledged the possibility that D indeed had the conditions ascribed, or at least some of them. However, the Maternal Grandmother also expressed the view that the conditions or the behaviours in D may be entirely the product of the influence of the Father and Ms C. Asked which of these possibilities she thought was more likely, the Maternal Grandmother expressed the view that it was more likely that any behavioural problems or issues with D were the product of the influence of the Father and Ms C. That is notwithstanding that she had the report of Dr W already referred to.
During her cross-examination the Maternal Grandmother suggested that the Father and Ms C “constantly tell the child he has these symptoms” and that they (the Father and Ms C) are “teaching him ([D]) to be autistic.” I reject the proposition that D has been taught to be autistic but this evidence demonstrates the true belief of the Maternal Grandmother.
Whilst the Maternal Grandmother, in her oral evidence, did not express negative views of Ms C at the same level as those with respect to the Father, her views were nevertheless entirely negative and of course some of the above views specifically with respect to the Father also implicate Ms C.
Father’s Attitude towards the Maternal Grandmother
In the November 2007 interviews with Mr Z for the first of his Family Reports, the Father freely volunteered to Mr Z, with respect to the Maternal Grandmother, “I hate this woman with a passion.”
That report reflects a constant theme in the Father’s evidence that from the very outset of his relationship with the Mother, the Maternal Grandmother did not approve of and had no respect for the Father. The theme of lack of respect is repeated throughout much of the first Family Report and otherwise, and was a theme of the Father’s oral evidence before me.
The Father plainly viewed the Maternal Grandmother as interfering and controlling, and in the early period subsequent to the Mother’s death, it would appear that any accommodation by the Father of the Maternal Grandmother having a role in D’s life was driven more by the Father’s promise to the Mother prior to her death to that effect than amounting to a recognition by the Father of the benefits to D of the maintenance of a relationship between he and the Maternal Grandmother.
The fundamental impression I have from the Father’s oral evidence is that whilst he was initially (post the Mother’s death) prepared to make some efforts for D to pursue his relationship with his Maternal Grandmother, a significant change in attitude in the Father occurred once the Maternal Grandmother instituted formal proceedings.
I have no doubt that the Father’s move to live in Town 1, if not driven in part by the desire to put further geographical distance between his household, including D, and the Maternal Grandmother, was at the least a decision reflecting to some extent an inability of the Father to put aside his own needs and views in D’s interests.
Of course, given what I have referred to above with respect to the Maternal Grandmother, there was, over time, significant contributions by the Maternal Grandmother to the development of the Father’s attitude, but the Father must accept responsibility to the extent that D’s needs and the benefit to him of the Maternal Grandmother’s involvement in his life have been put aside because of the Father’s inability to accept he was never likely to have the respect of the Maternal Grandmother.
I consider that the Father has been too readily prepared to reach the conclusion that contact with the Maternal Grandmother in and of itself produced behavioural difficulties in D as opposed to the observations of Mr Z to the effect that the conflict between adults, in which the Father has played a part, was itself more likely to be an influencing factor in this.
For the Father to suggest, as he did at the outset of these proceedings, and to seek Orders in terms that meant if D elected not to see his Maternal Grandmother that simply would be enough for the time not to occur, reflects a willingness of the Father to accept the potential end of D’s relationship with his grandmother, rather than pursuing some real solutions which enable D to have and maintain a relationship with the Maternal Grandmother.
On the evidence before me, it appears that the Father’s attitude to the Maternal Grandmother is mirrored by Ms C. Nothing in her affidavit or oral evidence before me, or as reflected in the other sources of evidence, demonstrates any substantial difference in Ms C’s attitude as compared to that of the Father.
At one point of her oral evidence, Ms C was prepared to be critical of the Maternal Grandmother for showing D photographs of his mother when she was a young person, suggesting that this was confusing for D as D apparently had some difficulty in assimilating, according to Ms C (paraphrasing her evidence) photographs of his mother when she was young compared to other photographs which were more current at the time of the Mother’s death. Whether or not D was confused, this evidence shows, in my view, some lack of insight by Ms C into what a relationship between D and the Maternal Grandmother has to offer him. He had only just turned three years of age when the Mother died, and the Maternal Grandmother is D’s only living relative on the maternal side. There is much she can impart to D about his mother as he grows and develops to give D a sense of his origins and identity.
Proposals of the Parties
The Maternal Grandmother seeks the Orders set out in her Amended Case Information Document filed 4 July 2011. In essence, she seeks an Order that D reside with her and that she have sole parental responsibility with respect to decisions about D’s education (including which school he attends and what additional assistance he requires by way of special education) and his health, including which medical professionals are consulted. Otherwise, the Maternal Grandmother proposes that the Father share parental responsibility with her for other major long-term issues. If living with her at Town 2, the Maternal Grandmother proposes that D would spend time with his Father for essentially half of school holiday periods and on every third weekend during school terms. She proposes telephone contact twice weekly and on special occasions. She has different time proposals “should the Father move from [Island 1] to live at a location which is substantially further away from the grandmother’s residence at [Town 2].”
Questioned about what appears at paragraph 204 of her affidavit filed 16 May 2011, where the Maternal Grandmother deposed, “I propose that[D] live with me for the foreseeable future, possibly for two to three years, depending on how he is progressing and what stage he has reached in terms of his personal development” and whether that meant she was seeking for D to live with her for only that limited period, the Maternal Grandmother provided an explanation to the effect that she was responding to “everyone” telling her that having regard to her age, that was a more sensible or realistic proposal.
The Maternal Grandmother presents as a fit and healthy seventy-four year old female. Her health is confirmed by her doctor, Dr AZ, who provided affidavit and oral evidence. I note that on the Statistical Life Tables compiled by the Australian Bureau of Statistics, which I regard as published research to which I am entitled to have regard, the Maternal Grandmother has a statistical life expectancy in excess of thirteen years. Such a period obviously would see out D’s attainment of majority.
On her proposal, D would live at Town 2, which the Maternal Grandmother sees as having many facilities close at hand. The Maternal Grandmother has a Driver’s Licence and a motor vehicle, and because she is retired, can devote all of her time to caring for D.
The Maternal Grandmother has made enquiries at schools in her area, and has identified School 3 at Town 2 as one offering special education services for D. As the Maternal Grandmother points out, she has a university degree in a healthcare field, including credits in special education. For many years she worked in a healthcare field with children as a clinical educator. Whilst the Maternal Grandmother has been retired for some ten years, I accept that she retains knowledge, experience and skills in her field.
The Maternal Grandmother proposes in her affidavit that she would consult her general medical practitioner, Dr AZ, to formulate a healthcare plan for D, and she envisages that would include referring D to a paediatrician, and the Maternal Grandmother has investigated the Town 2 Community Child Health Centre, which she says has a network of specialists who attend to provide consultations and services.
By his Amended Case Information Document filed 21 June 2011, the Father sought, inter alia, an Order for D to live with him and for the Father to have parental responsibility for D. He proposed that D spend an overnight weekend on one weekend each calendar month with the Maternal Grandmother, and otherwise telephone communication every third Sunday. However, his proposal was accompanied by the important qualification expressed in these terms:
“In the event that the Father considers it would not be in [D’s] best interests to spend time with the Grandmother on a particular weekend in accordance with clause 3.2.1 herein, the Father shall be at liberty to cancel the Grandmother’s time provided the Father also arranges for the Grandmother to have make-up time at a later date.”
However, at the conclusion of the trial, the Father altered his position to adopt the Orders proposed by the Independent Children’s Lawyer. Thus, ultimately, both the Father and the Independent Children’s Lawyer sought Orders having the effect that the Father would retain sole parental responsibility for D’s long-term care, welfare and development; that D would live with the Father; that there would be three consecutive Saturday periods between 10.00 am and 3.00 pm for D to spend time with the Maternal Grandmother, leading to overnight periods on a fortnightly basis until D commences school at the Autism Centre.
The reference to the “[Brisbane Suburb 2] State School” in those draft Orders, which are admitted and marked Exhibit 28, reflects the Father’s proposal that upon recommendations he has received from the Queensland Department of Education, D, because of his particular needs, ought attend the Autism Centre at Brisbane Suburb 2, which apparently has particular facilities for children within the Autistic Spectrum of disorders and Asperger’s. Mr AA, the Principal of the Island 1 School, which D currently attends, gave oral evidence before me to the effect that he was familiar with the Autism Centre at Brisbane Suburb 2, and he spoke positively about that facility with respect to D and thought that D would manage a transition to that school. The Father’s proposal would see D attending the Centre at Brisbane Suburb 2 for three days per week, with D continuing to attend the Island 1 School on the other two days. It will be seen that by altering his position in the manner referred to, the Father moved from a provision of no allowance for holiday time to proposed Orders which would see D spending time with the Maternal Grandmother essentially for half of the June/July holiday period and for two one week periods in the Christmas period.
Central Issues
Against that background and having regard to the proposals of the parties and the Independent Children’s Lawyer, it would appear that the issues central to the overall “best interests” determination the Court is to make; are:
·D’s health, educational and behavioural issues and whether these have been addressed adequately whilst D has been residing with the Father and will likely be adequately addressed in future if the Father retains sole parental responsibility and D continues to live with the Father;
·Whether D’s health, educational and behavioural issues would be better addressed if he lived with the Maternal Grandmother and she has parental responsibility for those issues;
·The benefit to D of each of his relationships with, respectively, each of the significant adults in his life referred to;
·Whether the attitude of the Father and Ms C towards the Maternal Grandmother would enable D to have a meaningful relationship with the Maternal Grandmother if D continues to reside with the Father and he retains parental responsibility;
·Whether the attitude of the Maternal Grandmother towards the Father and towards Ms C would enable D to have a meaningful relationship with the Father and Ms C if D resides with the Maternal Grandmother;
·The likely effects upon D of the change from living with his father to living with the Maternal Grandmother;
·How D’s best interests can be served given the respective attitudes of the Father and Ms C on the one hand, and the Maternal Grandmother on the other;
·Whether D’s father provides adequate parenting of D.
Applicable Law and Principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) (ss 60A to 70Q) provides the statutory framework in which this Court exercises the power to make parenting orders.
In Donnell v Dovey (2010) FLC 93-428, the Full Court of this Court (Warnick, Thackray and O’Ryan JJ) gave consideration to the application of Part VII in cases where, as here, the Court is considering competing proposals of a “parent” of the subject child on the one hand, and a “non-parent” on the other. In the course of that consideration, the Full Court referred to a number of cases including Aldridge v Keaton [2009] FamCAFC 229; Potts v Bims [2007] FamCA 394; Mulvany v Lane (2009) FLC 93-404; Hort v Verran [2009] FamCAFC 214; Marsden v Winch (No 3) [2007] FamCA 1364 and Chantness v Hanson (2009) FLC 93-407.
I consider that, by reference to Donnell’s Case, the following propositions emerge (referenced to the relevant paragraphs of the Full Court judgment) as to the manner in which Part VII applies in such cases:
a)The “overarching” provision of Part VII is s 60CA, which provides:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
It contains no distinction between parents and non-parents, so the child’s best interests remain the paramount consideration regardless of the biological (or other) connection of the child to the parties to the proceedings. [79] and [80].
b)“Parent”, when used in Part VII, means a biological or adopted parent, and does not include a person who stands in loco parentis to a child. [90] to [93] (excluded from this are cases involving children born as a result of artificial conception procedures discussed in Aldridge v Keaton (supra) at [16] to [22]; and, possibly, the application of s 61F of the Act with respect to persons treated as a parent by Aboriginal or Torres Strait Islander customs where s 61F applies)
c)“Parental responsibility”, defined by s 61B to mean, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children,” vests only in “parents” of a child absent an Order of the Court or a parenting plan (s 61C). [83].
d)Parenting orders, defined by s 64B, including Orders for “parental responsibility” may be made in favour of non-parents as well as parents. (ss 64B(2) and 65(c)). [82]. An Order can be made for a non-parent to have parental responsibility or to share that responsibility with another person who may or may not be a parent. [83].
e)The presumption as to the equal allocation of parental responsibility provided for in s 61DA and the considerations of equal time or substantial and significant time mandated by s 65DAA are not prescribed as part of the reasoning process to the “best interests” conclusion in proceedings between a parent and a non-parent. [86], [121] and [122].
f)There are distinctions between a parent and non-parent by reference to ss 60B(1) and (2), which set out the objects of Part VII and the principles underlying those objectives, respectively. [76]. The objects expressed in s 60B(1)(a), (c) and (d) specifically refer only to “parents” (or parenting), as do the principles expressed in s 60B(2)(a), (c) and (d). [121] and [122].
g)Section 60CC, which sets out the “primary considerations” and the “additional considerations” to which the Court must have regard in determining “best interests” maintains clear distinctions between a parent and a non-parent. [94]. It follows that:
i)Any consideration of the benefit to the child of having a meaningful relationship with the non-parent is not a primary consideration within the meaning of s 60CC(2)(a) because it refers to “both of the child’s parents”. [100] and [101]. (and for the same reason where, as here, one parent has died, s 60CC(2)(a) has no application [119]).
ii)The additional consideration in s 60CC(3)(c), “the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent”, does not apply to proceedings between a parent and non-parent.
iii)Notwithstanding i) and ii) above; in a particular case the maintenance of a meaningful relationship with a non-parent may be an important consideration in determining “best interests” [101]; and in a case involving a non-parent (who may have played and seeks to play a significant role in the child’s life) it is essential to address that person’s willingness and ability to facilitate the relationship between the child and the child’s parent. [97]. Consideration of those matters proceeds pursuant to s 60CC(3)(m), which mandates that the Court consider “any other fact or circumstance that the court thinks is relevant”.
iv)The additional considerations in ss 60CC(3)(b) (practical difficulty of spending time and communicating) and (i) (demonstrated attitude to the child and to the responsibilities of parenthood) likewise do not apply, but if the facts of the case raise them as issues, they can be addressed under paragraph (f) (capacity to provide for needs) or paragraph (m) as referred to above.
I propose to apply Part VII to the relevant facts and issues in this case in the manner directed by the Full Court in Donnell’s Case in determining parenting orders in D’s best interests. I approach the relevant section 60CC considerations bearing in mind the section 60B objects and principles applicable to this case. Many of the findings I have already made go to one or more of the section 60CC considerations and, moreover, given the overlapping between relevant considerations and indeed between them and applicable objects and principles, the below categorisation of topics I have attempted needs to be considered and read as a whole.
Best Interests – s 60CC Considerations
s 60CC(2)(b) “primary consideration” – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This primary consideration is raised by the Maternal Grandmother, particularly by reference to Exhibit 27, being the material subpoenaed by the Department of Communities (Child Safety), tendered in evidence.
That Exhibit records a number of notifications made by the Maternal Grandmother, commencing from 23 May 2006, but it also includes a notification made by an unnamed person who allegedly witnessed a relevant event at court on 5 September 2007. Whilst the notification does not identify the notifier, the text of it suggests that the notification was made by a female court staff member who made observations of the Father, Ms C and D. The relevant contents set out in the notification dated 6 September 2007 records the notified concerns as follows:
“-Father of the subject child and his partner were at the Courthouse yesterday with the subject child.
-Notifier was very concerned about the treatment of the child by the two adults.
-Father of the child began screaming and yelling at the subject child, telling him to “Shut up it’s his fault they had to go to court”.
-The father was then seen to be screaming down at the child and telling him to “Shut up” and then (notifier) heard the child scream and say “You’re hurting me daddy” and then he screamed and run (sic) to the stairs.
-(Notifier) went up to the child who was crying and said his dad had hurt his arm.
-(Notifier) then took the child to booth for a short while.
-(Notifier) noted the Father to continue yelling at the child and when the Father’s partner went to sit down, the child went to get his drawings and the Father’s partners (sic) told the child to “Shut up” and pushed him in the chest. The child hit a partition behind him and bounced off, whereby the father’s partner pushed him again in the chest, causing the child to fall into the partition again.
-(Notifier) was very upset for the child (Notifier) told the father and his partner that it was inappropriate the way they treat the child.
-(Notifier) stated that the court has footage of the incident.”
The subject notification contains a record of the interview between Departmental officers and D, which took place on 19 December 2011. Relevantly, what is there recorded is as follows:
“We tried to ask him if he remembered that day at court. He said he could not remember that day… he did eventually remember running out of the court and getting into the lift. He also remember the security guard telling him to not get into the elevator. We ended up asking him if he remembered a time at court when Dad had been yelling at him. He did not appear to have any clear memories at all in this regard.
We asked him if Dad had hit him or pushed him and he said no. We asked him what happened when he got in trouble and he said Dad and [Ms C] talk to him. I asked if he ever got smacked. He did remember a time earlier in the year when he had picked up a drill that Dad had smacked him on the bottom.
[D] appeared to be a happy child who is very attached to his father. He calls [Ms C] “[an abbreviation of Ms C’s first name]” and knows that she is not his mum. He says he remembers going to the hospital to see mum. He went nearly every day for two years.
When we were asking him questions about him remembering the court, [D] said that he had talked to a lady a while ago who asked him where he wanted to live. He said he told her with Dad. He sometimes visits his grandmother for a few days, but this had become less since he started school.”
The record of the interview between the Department officers and the Father and Ms C which sets out the history given by the Father on that occasion in relation to the subject event records the following:
“On the day the alleged incident took place, they had been at court all day and had been messed about by not being told they had to have copies of their affidavits, times being wrong, being at the wrong court and having to race over to another court etc. It had been a very long day and [D] had become very restless.
[D] had taken off at least three or four times in the preceding forty-five minutes and [the Father] had had to go and get him. Once, [D] got into the lift and the security guard had to stop him. [The Father] and [Ms C] had been trying to finish photocopying of the documents when the incident took place – “all of a sudden, after sitting around for hours, they informed us we needed extra copies and we had to race to get it all done”. [The father] said that it was had (sic) trying to keep [D] busy during this time.
[The father] admitted he had shouted at [D], and he said he had done this in frustration at [D] running away and being very stressed. [The Father] denied any physical contact (smacking) of [D]. He was very adamant that he had only shouted at him. When the content of the shouting was discussed, [the Father] did acknowledge that in hindsight, he should not have said it was [D’s] fault that they were at court. [The Father] said that He, [Ms C] and [D] was (sic) very tired and cranky by the afternoon.”
The balance of that record relevantly records the Father and Ms C agreeing that when the Father yelled at D, “the court lady told him not to do that” and Ms C refers to D pushing her in the chest, but both the Father and Ms C were adamant that they did not push D. The record includes:
“We talked to [the Father] about not saying things like he had said to [D], i.e. that it was “his fault they were at court”. We talked about the impact this could have on him. [The Father] was remorseful that he had said this and had blamed [D] for the stress at court. [The Father] said he would make sure that he never said things like this to [D] again.”
The notification records that the matter did not meet the criteria for a SCAN referral; the assessment form identifies thirteen “immediate harm indicators” and the Department have answered each of these in the negative, that is, they saw no immediate harm indicator; and in respect of the section 4 “safety”, the Department concluded that D was safe. The risk of abuse was assessed at 1 out of a scale of “9+”, giving an assessed “low” risk for substantiated risk based on the Father’s admission that he chastised D by yelling at him, and admitted blaming D for having to be at court that day.
Cross-examined about this event, the Father’s evidence was consistent with what is recorded in the interview with the Department. The Father admitted that he had said to D that it was D’s fault that they were at court that day, but on my assessment, the Father acknowledged in his evidence before me, as he did to the Department, the error for that, and admitted remorse. In circumstances where the person who made the notification was not called to give evidence and be tested on her version I accept the Father’s version.
This event was put to Mr Z during his cross-examination and Mr Z was asked, in effect, whether this meant D is at risk of abuse in the Father’s care. Mr Z’s initial response was perhaps the obvious one of asking whether there was any other evidence of this kind given that this event occurred in 2007. Mr Z assesses in his reports as he referred to in his oral evidence, that throughout the period of his interaction with the family, D has always appeared well-cared for and it does not appear that D has ever made any disclosure to Mr Z in this respect.
Whilst I do not excuse the Father’s statement to D on the day (and I do not think the Father excuses himself), there is no evidence before me to suggest that there is a need to protect D from physical harm in the care of his father. As already noted, D has consulted many doctors and medical professionals and much of this material, as well as school material, was subpoenaed for the trial. None of this material reflects any inappropriate physical discipline or a repeat of statements of the kind the subject of this particular event.
Another event focussed upon in the Maternal Grandmother’s case, surrounds what may be termed the “overdosing” of D with the medication Ritalin referred to by Dr T in her written and oral evidence. Dr T was the consulting paediatrician who treated D between 16 June 2008 and 6 July 2009. The summary of Dr T’s evidence is that on 25 February 2009, D was commenced on Ritalin (methylphenidate) 10mg tablets, commencing on a dose of two tablets per day. On 6 April 2009, this was increased to three tablets per day, or 30mg per day. Dr T records that, on 24 June 2009, when Ms C attended the appointment with D, Ms C reported the timing and number of doses as “up to two tablets in the morning, one at 11.00, one at 2.00 pm and occasionally one at 4.00 pm or 5.00 pm in the afternoon.” Dr T records that she had never prescribed beyond three tablets a day, so that on Ms C’s statements, D was, on occasions at least, receiving up to 50mg per day. In the event, as Dr T records, this overdosing led to a reaction in D of problems with increased heart rate and also a loss of weight and ultimately the medication was ceased.
Dr T gave oral evidence before me, and while she expressed obvious concerns about the increase in medication beyond the prescribed level, she acknowledged Ms C’s free admission to her that this is what had occurred in terms of any sinister connotation that might be placed on this.
In her oral evidence, Ms C took issue that she ever told Dr T that D was given two tablets in the morning. She acknowledged the other record, meaning that, at the very least on her version, D was receiving up to 40mg per day. Ms C also took issue with whether 30mg was the only prescribed dosage, suggesting that Dr T had indicated otherwise even in some referral letter, not before me, when the matter was investigated for review of D by an EEG. Ms C referred to the letter she wrote after the events making complaints about Dr T’s records, and that letter or form appears as Exhibit 24.
However, Dr T was not cross-examined by the Father’s Counsel with respect to Ms C’s version, and taking that into account, as well as my assessment of Dr T, I prefer Dr T’s evidence on this issue to that of Ms C.
However, as Dr T notes, the free admission of what occurred by Ms C makes it clear enough that this was no contrived or concealed attempt by anyone to consciously or deliberately overdose D, which would plainly be against his interests. It seems to me that whilst this instance is troubling, it is more likely than not that it was the product of carelessness or lack of attention to detail, but on the evidence as a whole on this issue, I find that, as Mr Z has observed in his reports, both the Father and Ms C appear to have been generally diligent in their attention to D’s medical needs, having undertaken considerable research themselves in the search for solutions to address D’s difficulties.
I find that there is no identified need to protect D from physical harm or neglect in the care of his Father.
As to psychological harm, for the reasons already discussed, each of the Father, Ms C and the Maternal Grandmother pose some risk of psychological harm to D given the potential for them to share the negative attitudes discussed above with D.
Whilst on one level, it might be said that the Father and Ms C are generally just as negative about the Maternal Grandmother as she is towards them, it seems to me that the Maternal Grandmother’s negative attitudes and beliefs about the Father contain fundamental attacks on the Father’s personal integrity which are not soundly or reasonably based of a kind not present in the Father’s attitude to her. Indeed, the Father’s negative attitude to the Maternal Grandmother is largely driven by the attacks or criticisms she makes so fundamental to his personal integrity.
There is some evidence before me, which I accept, that the Maternal Grandmother may be prepared to share views with D which, by necessary implication, may impart to D her criticism of the care D receives from the Father and questions whether D’s needs are properly addressed in the Father’s care. For example, at paragraph 109 of Mr Z’s May 2011 report, Mr Z records with respect to a joint interview between he, the Maternal Grandmother and D:
“…the maternal grandmother then returned to the subject of school and said “you’ve been to a number of different schools, you need support”. She mentioned “swimming”, and then [D] lost control completely, groaned, and after the maternal grandmother had said “you’re stepping into more of being a disabled person”, he groaned once more and walked out.”
(my emphasis)
In cross-examination, the Maternal Grandmother denied that she would have made such statements to D. However, Mr Z gave unequivocal evidence that he includes statements in his reports directly attributed to parties from contemporaneous notes he makes at the time of interviews, and he was adamant that the Maternal Grandmother did make those statements. I prefer Mr Z’s evidence. Clearly, if even in the forensic setting of an interview by a Family Report writer the Maternal Grandmother is prepared to relay such statements, one is left to wonder the extent to which the Maternal Grandmother might impart to D other views of the kind already discussed.
Likewise, I have already referred to paragraph 122 of the first Family Report, which records D telling Mr Z that both the Maternal Grandmother and the Father say “nasty things” about each other to D.
I was also left troubled by the Maternal Grandmother’s oral evidence to the extent that she suggested that, given the opportunity, she might explore further investigation by medical professionals of her suspicions about sexual abuse (as earlier referred to) and perhaps also pursue such steps to, in effect, validate her other concerns as regards the Father’s parenting. Given the findings I have made concerning alleged sexual abuse or sexual perversion, there is obvious potential for psychological harm to D being occasioned if the Maternal Grandmother is in fact intent on exploring further issues of that kind involving D in interviews and therapy from other medical and allied professionals.
s 60CC(3) “additional considerations”
(a) D’s views; and (b) the nature of the relationship of D with the Father, the Maternal Grandmother and Ms C
The Court has the evidentiary advantage of having three Family Reports prepared by Mr Z from his interviews over time from November 2007; May 2010 and May 2011 together with Mr Z’s oral evidence. Having regard to the other evidence and assessment of the parties, I largely accept Mr Z’s assessments and the opinions he expresses.
Whilst in is oral evidence Mr Z expresses caution about taking any views expressed by D face value given his ages and stages of development, combined with his identified health and behavioural issues, there is little doubt, and I find, that D loves and has an attachment to, each of the Father, the Maternal Grandmother, and Ms C, and in each case that feeling is mutual.
Even taking into account the caution suggested by Mr Z, D seems to have consistently expressed the view that he is happy with, and wishes to continue, living with the Father whilst at the same time, I accept that his views reflect D’s wish to spend time with the Maternal Grandmother. In reaching these conclusions, I take into account D’s preparedness in the Family Report interview process, to express some views directly to each of those respective adults, which are not at all times in conformity with the particular adult’s own views.
Given my findings in this respect, I consider that an Order resulting in D living with the Father would be consistent with my assessment of D’s views, as would Orders for D to spend time with and communicate with the Maternal Grandmother.
As to Ms C, whilst she is the self-described carer of the Father, there cannot be any doubt that her role and relationship with D extends much further. There is an abundance of evidence before me to establish that Ms C has played a significant role in D’s life since she became part of the Father’s household. I accept her evidence that she loves D and I infer from that, and her past conduct, that she is likely to remain a significant part of D’s household if he remains living with the Father.
(d) the likely effect of any changes in D’s circumstances
Some change for D is inevitable on either proposal. The Maternal Grandmother’s proposal involves a change of schooling for D from his present circumstances to a school local to the Maternal Grandmother in Town 2. On the Father’s proposal, it is likely that whilst D will remain partly at his present school on Island 1 for two days per week, he will, when a place becomes available, commence attending the Autism Centre at Brisbane Suburb 2 under the auspices of the Queensland Education Department for the other three days.
Stability of circumstances is important for any child and this is a particularly acute need with D given the evidence concerning his potential reaction to change.
The topic of the change of schools on the Maternal Grandmother’s proposal was addressed with D in the joint interview session with Mr Z in May 2011, and Mr Z records the following in his report:
“106. I then brought the subject of conversation to the maternal grandmother’s plan for the future, and she turned to [D] saying “We talked about my plan, we do have a great school at [Town 2].” [D] then became very morose, grunted, and said, “Why not come down to [Brisbane Suburb 3], we can stay in a motel.”
107. The maternal grandmother persisted by talking about [D] being transferred to “a new school”, and at this, [D] looked distinctly uncomfortable, pulled a face and fidgeted in his chair. He shook his head vigorously in the negative.
108. The maternal grandmother tried to persuade him to think in positive terms about a new school, but he then groaned, and when I asked him whether he could, “imagine going to a different school?”, he said “I don’t want to! I’m already going to a better school”. He seemed very close to losing control at this point.”
Of course, from D’s perception, the prospect of attending school in Town 2 may induce fears of the unknown, but there would be something of an experimental quality to impose such a change on top of changing D’s primary care arrangement.
Whilst the Father’s proposal as noted also involves D attending a new school, he would at the same time retain connection with his present school. The change to the new school at Brisbane Suburb 2 is for D’s therapeutic benefit, and I refer again to the positive evidence from Mr AA, D’s current school Principal, as to his positive view of what that Centre has to offer D and his assessment that D would cope with a change which would have D attending school at Island 1 on two days a week, and attending at the Centre on the other three days.
More fundamental change is represented by a change from D living with his Father, and Ms C, to a change of living with the Maternal Grandmother. Mr Z gave evidence, which I accept, of the potentially grave consequences of such a change to the relationship D has with his Father and Ms C. Mr Z identified a significant risk of those relationships not enduring such a change.
I find that overall, it would not be in D’s best interests to impose upon him the changes represented by the Maternal Grandmother’s proposal unless the preponderance of other factors is so overwhelming as to demand that change, despite its consequences. I find that the Father’s proposal represents much less change and consequences for D, which is in his best interests.
I consider that change to D must be minimised in the sense of formulating Orders which preserve, to the extent Orders can, a continuation of D having the experience of each of the significant adults in his life.
(f) the capacity of each of the Father, Ms C and the Maternal Grandmother to provide for the needs of D, including emotional and intellectual needs
As already noted, the Maternal Grandmother is a well-educated person who had a professional career, and she is obviously intelligent and has generally the ability to provide for D’s needs. The significant reservation I hold about the Maternal Grandmother’s capacity in this respect is D’s emotional need to have a relationship with his Father and Ms C if D was in the Maternal Grandmother’s primary care.
I have the same reservations as expressed by Mr Z in his oral evidence as to the prospects of D’s future relationship with his Father as referred to above if D were primarily living with the Maternal Grandmother.
As to the Father and Ms C, whilst much of the Maternal Grandmother’s case focussed upon their deficiencies, I do not accept, on the evidence as a whole, that such perceived deficiencies in fact exist. The Maternal Grandmother is highly critical of D’s living circumstances in Town 1 both whilst living on the land-based boat and in the motor home. However, despite the plethora of subpoenaed material, there is no hard evidence before me that such living circumstances constituted a deficiency in meeting D’s needs. Mr Z undertook interviews for his second report at the motor home, and he also gave oral evidence about that at the trial. Whilst to some minds, such living circumstances might not be ideal or that person’s preference, I do not find the Father’s selection of such living circumstances for D as reflecting a deficiency in the ability to provide for his needs.
The Maternal Grandmother is also critical of what she perceives as a failure to involve D in extra-curricular activities. This relates particularly to the period when D was living in Town 1, as the Father gave oral evidence of such involvement by D when living on Island 1. However, as the report of Ms P reflects, from an early stage, a significant problem for D was interacting with his peers. Living in Town 1, and attending school necessarily entailed such peer interaction, but I do not find D’s lack of involvement in extra-curricular activities to be a “failure” in any relevant sense.
The Maternal Grandmother is also critical of the Father’s capacity to provide for D’s medical needs. She suggests that he, and Ms C, can’t or won’t follow appropriate advice or mechanisms to properly address D’s medical needs. However, again, there is an abundance of medical evidence before me, and viewed as a whole, it does not suggest to me that there is a sound basis for establishing the proposition the Maternal Grandmother urges. Aside from the Ritalin episode referred to above, I do not see Dr T or indeed any other medical practitioner raising substantial concerns concerning the capacity of the Father or Ms C to properly address D’s needs in this respect. Nor do the school records reflect that. Mr Z has maintained a consistent assessment, positive to the Father and Ms C, in this respect and I accept that assessment.
Whatever else one makes of the decision for D to undertake treatment at the Centre referred to in Sydney in the latter part of 2009, and even though some doctors questioned the therapeutical benefits of some of that treatment, I do not find this to be characterised as a deficiency of treatment or a deficiency on the part of the Father to seek appropriate treatment. To the contrary, I find that this reflects a diligent approach by the Father in searching for some answers to the increasing behavioural difficulties D was experiencing, and rather than criticism, the Father deserves some credit for that approach.
It is to be remembered that Dr W was jointly commissioned by the parties to provide his recent report. Nothing in Dr W’s report suggests (despite his review of voluminous historical material) an identifiable deficiency in this respect.
Whilst no evidence was adduced before me from Mr CC, who is D’s current treating psychologist, it seems to be accepted that D is receiving assistance from that source and I accept that D will continue to see Mr CC and Dr W as his consulting paediatrician.
I accept Dr AZ’s affidavit and oral evidence to the effect that the Maternal Grandmother is a healthy and vital seventy-four year old woman, with the physical capacity to care for D, as far as that opinion goes. However, in cross-examination, Dr AZ conceded that he was not fully aware of the extent of D’s behavioural problems, particularly as regards D’s capacity to assault adults, such as teachers, and part of Dr AZ’s evidence was that the Maternal Grandmother would not be able to “wrestle” D. The more troubling aspect of Dr AZ’s evidence was to the effect that a child with D’s problems would need a primary carer accepting of those problems and approaching his needs with that acceptance. For the reasons I have already identified, I have significant doubts that that is truly accepted by the Maternal Grandmother. I reiterate her evidence to the effect that it was more likely than not that D’s behaviours reflect the influence of his father and Ms C rather than there being real health difficulties.
Whilst it is true, as Mrs Farr, Counsel for the Maternal Grandmother, points out, that the Father is a sixty-two year old man with sufficient health difficulties as to qualify him for a disability support pension and thus also has limits to his physical capacity to deal with any violent outbursts by D, it seems to me that it is relevant that, living in the Father’s household, there are two adults available to address D’s needs (and on my findings, both are committed to doing so), as compared with the scenario of D living primarily with the Maternal Grandmother. Also, given the evidence concerning D’s propensity to “run away”, I think there is some merit in the Father’s evidence which is to the effect that by living in a small community on Island 1, itself an island, there is only so far that D can run to and I accept the Father’s evidence that D is known to locals, including the local police. Compare that to the situation the Maternal Grandmother faced earlier this year, when D ran away whilst the Maternal Grandmother was at a service station. Whilst I appreciate that that could happen on occasions when D is spending time with the Maternal Grandmother, it seems to me that this risk is minimised if D is residing primarily with the Father.
I therefore find that it is more likely than not that the Father, with the assistance of Ms C, has a superior capacity to that of the Maternal Grandmother to provide for all of D’s relevant needs.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
I have had regard to this consideration within the considerations I have already dealt with and will deal with further below.
(j) any family violence involving the child or a member of the child’s Family
I have already addressed and made findings with respect to the specific incident raised by the Maternal Grandmother, the subject of Exhibit 27, as discussed above. I find that there is no family violence within the meaning of the section relevant to consideration of D’s best interests.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
As already noted, I have accepted Mr Z’s assessment to the effect that there is a real risk of D’s relationship with his father if an Order is made for him to live primarily with the Maternal Grandmother, and that is consistent with my other findings concerning her attitude and views.
I am also conscious of the feature that if an Order were made now for D to live with the Maternal Grandmother, her own evidence, as earlier referred to, as to a “two or three year” period, may invite further proceedings to be instituted by the Father at the expiration of such a period.
In my view, given the long history of acrimony in this matter to which D has been exposed, an outcome which lessens the prospects of yet further proceedings would be in D’s best interests, and I consider that is more likely achieved by Orders preserving the position that D continues to reside with the Father.
(m) any other fact or circumstance that the court thinks is relevant
The willingness and ability of each of the Father and Ms C on the one hand, and the Maternal Grandmother on the other, to encourage a close and continuing relationship between D and those adults is clearly a relevant consideration on the facts raised here.
Whilst I must necessarily have concerns about the Father’s willingness and ability in this respect, given the history, it seems to me that if I take into account the conclusion of these proceedings with Orders that potentially bring an end to the prospect of D living with the Maternal Grandmother, or at least the Father facing litigation to that effect; plus the Father retaining parental responsibility for D with Orders that limit the Maternal Grandmother’s capacity for interference in the Father’s decisions in that respect; it would enhance the prospect of the Father making good on his promise to the Mother to maintain D’s relationship with the Maternal Grandmother.
Conversely, given the findings I have made, I do not have the same confidence that if D were residing with the Maternal Grandmother, and assuming she necessarily then had some or sole parental responsibility for health and educational issues, that there would be an acceptable level of willingness on her part to facilitate and continue D’s relationship with his father and Ms C.
I therefore find that whilst there are reasons to be pessimistic either way, there remains a better prospect of D continuing a relationship with all concerned if Orders along the lines contended for by the Independent Children’s Lawyer and the Father are made. That proposal incorporates changeovers limiting the need for the respective parties to confront each other at changeovers in D’s presence, and provide some means of distraction of D and will hopefully minimise the prospect of what has occurred in the past with respect to D reacting, for whatever reason, to changeovers.
I have, in taking into account the considerations I have referred to, had regard to the object of protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence as expressed in s 60B(1)(b) and I have also had regard to the principle expressed in s 60B(2)(b), namely, except when it would be contrary to a child’s best interests, 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).
Parental Responsibility
Having regard to the findings I have made, I consider that if D continues living with the Father, which is the Order I propose to make, there is otherwise no sound basis for disturbing the position that the Father retains sole parental responsibility with respect to decisions concerning D’s long-term welfare, including his education and health. In fact, for the reasons I have expressed, I consider that if Orders make it plain that the Father shall continue to have sole parental responsibility for such important long-term decisions with the consequence of minimal capacity for the Maternal Grandmother to interfere in such decisions, that may go some way to enhancing the Father’s willingness and capacity to promote D’s relationship with the Maternal Grandmother.
Conclusions
In addition to the findings and conclusions already made, returning to the “Central Issues” earlier identified, I find that:
·D’s health, educational and behavioural issues have been addressed adequately whilst D has been residing with the Father and will likely be adequately addressed in the future if the Father retains sole parental responsibility and D continues to live with the Father.
·D’s health, educational and behavioural issues would not be better addressed if he lived with the Maternal Grandmother, and she had parental responsibility for those issues.
·There is a benefit to D of his relationships with the Father and Ms C on the one hand, and with the Maternal Grandmother on the other.
·Whilst the attitudes of the Father and Ms C towards the Maternal Grandmother pose a risk to the prospect of D having a meaningful relationship with the Maternal Grandmother if D continues to reside with the Father and he retains parental responsibility, that risk is substantially outweighed by the risk that the attitude of the Maternal Grandmother towards the Father and Ms C will not enable D to have a meaningful relationship with the Father and Ms C if there is a change for D to reside with the Maternal Grandmother.
·The likely effects upon D of the change of living with his father to living with the Maternal Grandmother, as identified, are not in his best interests and are not supported by the preponderance of evidence, nor the conclusions with respect to the factors considered overall with respect to D’s best interests.
·Orders which provide for D continuing to live with the Father and to maximise the prospects of D having a continuing relationship with the Maternal Grandmother are in his best interests.
·D’s father provides adequate parenting of D.
I Order in accordance with the Orders set out at the commencement of these reasons.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 August 2011.
Associate:
Date: 8 August 2011
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