HILDITCH & HUANG

[2019] FamCA 43

FAMILY COURT OF AUSTRALIA

HILDITCH & HUANG [2019] FamCA 43

FAMILY LAW – CHILDREN – Interim Parenting – Where the father seeks an order for the mother to facilitate the child’s time with the father – Where the child has not spent time with the father for several weeks – Where the mother seeks the child spend less time with the father – Where the child seeks time with the father, but wants that time to be less than previously ordered – Orders made for the child to spend alternate weekends with the father – Where the mother seeks sole parental responsibility for medical issues – Where that matter will be resolved at final hearing.

APPLICANT:

Mr Hilditch

RESPONDENT: Ms Huang

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: SYC 2358 of 2013

DATE DELIVERED: 6 February 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 31 January 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Linden Legal

COUNSEL FOR THE RESPONDENT: Mr Johnston

SOLICITOR FOR THE RESPONDENT: Sheridan McMahon Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: O'Donnell & Associates

Orders

IT IS ORDERED, PENDING FURTHER ORDER

1. That X born … 2007 (“the child”) spend time with the father, during school terms, each alternate weekend from Friday after school until school starts on Monday morning, or Tuesday if Monday is a public holiday, commencing on Friday 8 February 2019.

2. That the mother not be present when the child is collected from or delivered to school.

3. That, unless otherwise agreed, during school holiday periods after Terms 1, 2 and 3, the child shall spend each weekend with the father from 5pm on Friday until 8pm on Sunday.

4. That, unless otherwise agreed, during the Christmas 2019/20 school holiday period, in the half of the holidays the child would spend with the father pursuant to the existing orders, those orders are suspended to the extent that the child will spend each weekend of the father’s holiday period with the father from 5pm on Friday until 8pm on Sunday.

5. That where changeovers do not occur at school, the parent dropping the child will remain in his or her vehicle and the other parent will not approach the vehicle.

6. That Order 24 made on 18 June 2014 is varied to the extent that the father may not attend the child’s medical appointments unless invited to do so by the mother in writing (including by email).

7. That the parent with whom the child resides on the day of any school or extra-curricular event may attend that event and the other parent shall not attend.

8. That in the event that the father consults a treating therapist in relation to parenting matters, he may provide to the therapist a copy of these reasons and a copy of the report of Dr B dated 15 July 2018.

9. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2358 of 2013

Mr Hilditch

Applicant

And

Ms Huang

Respondent

REASONS FOR JUDGMENT

1. Mr Hilditch (“the father”) and Ms Huang (“the mother”) are the separated parents of X (“the child”) who was born in 2007 and is now aged 11 ½ years. The child is in Year 7 commencing in 2019.

2. The parents separated in 2012 when the child was five years old. Thereafter the child lived primarily with the mother and was cared for with the assistance of the maternal grandmother who lived with them for part of each week.

3. In February 2014, Dr B, a child, adolescent and family psychiatrist who had been appointed as single expert, prepared a report.

4. On 18 June 2014, the parents agreed on the care arrangements for the child and final consent orders were made which provided for them to have equal shared parental responsibility and that the child live with the mother and spend five nights each fortnight with the father. School holidays were to be equally shared.

5. On 9 February 2018, the parenting orders were varied to extend the time the child spent with the father to commence after school on Thursday and end at school on the following Wednesday morning in each alternate week, a total of six nights each fortnight.

6. An Independent Children’s Lawyer (“ICL”) was appointed for the child.

7. Dr B, prepared an updated report which was released to the parties on 18 July 2018.

8. On 11 September 2018, after an interim hearing, the child’s time with the father was reduced to five days each fortnight commencing Friday after school and ending at school on Wednesday.

9. Matters did not go well in the Christmas school holidays of 2018/19 when the child was to spend the last half of the holidays with the father.

10. The mother and the child spend the first half of the holidays together. The child spent time with the father on Christmas Day. The father observed that the child’ feet were bandaged and the child didn’t want his father to look at them. The child has a long standing history of skin rashes.

11. The holiday changeover occurred on 4 January 2019 when the mother dropped the child off at the father’s home.

12. The mother had made an appointment with the child’s doctor to treat a wart on the sole of the child’s foot. The appointment was for 11.20am on 5 January 2019 with the child’s usual doctor, Dr C of the Suburb D Medical Practice. Order 22 made on 18 June 2014 specified that the child was to be taken to the Suburb D Medical Practice unless that practice was closed or in the case of emergency. That order was varied sightly on 22 February 2017 but not significantly for present purposes.

13. The father deposed that he received an email from the mother on 2 January 2019 about the appointment for 5 January 2019. The father had made plans for a boat outing on 5 January 2019 so he changed the appointment to a different doctor at the same medical practice at 4.45pm on 4 January 2019 and notified the mother.

14. The mother deposed that she emailed the father on 2 January 2019 telling him of the appointment and asking him to confirm that he would take the child. The mother deposed that this was the first available appointment with Dr C. She emailed the father again on 3 January and sent a text later the same day.

15. Both parents attended the medical appointment. The wart was treated. There was an altercation between the parents at the medical centre. They each have a different version of what occurred and no determination can be made here about which version should be accepted.

16. However, the records of the doctor in relation to the consultation were produced. The doctor noted that the father questioned the mother about her treatment of the child’ foot and “as to what direction she gave this treatment”.   The notes record:

    At end of the consult, [the father] asked [the child] to remain with him whilst [the mother] returned to waiting room, or else she would accuse him of something if he walked behind her. When she didn’t leave, [the father] asked me to ask her to leave without [the child] and himself. I did not respond to his request. He asked me again as he walked backwards out of the consult room whilst facing me, at which point he stumbled, I assume because he stepped on [the mother’s] foot who was standing behind him at the time. [The father] apologised to [the mother] immediately, I assumed because he had accidentally stepped on her foot. [The child] and his parents then walked back to the waiting room. I then noticed that [the father] had left his phone, wallet and key in my consult room, so I walked after them. I caught up to them near the waiting room and told [the father] he had left his personal belongings. He thanked me and said they were his belongings and said to me that there would be sequelae as a result of me not telling [the mother] to leave the waiting room first.

    (As per the original)

17. It is sufficient to say that, whatever version is accepted, this must have been a deeply uncomfortable experience for the child.

18. The child left the doctor’s rooms with the father.

19. The father deposed that the child remained agitated and distressed after they got home. He made a number of comments to the father about things attributed to the mother’s views of the father.

20. The child told the father there was something he needed to tell his mother. The father suggested a telephone call. The child said he needed to talk to his mother in person. The father offered to drive the child to his mother’s home but the child set out on foot. The father drove after the child and eventually caught up with him as the child reached his mother’s unit. The father told the child that he would wait outside in the car while the child spoke to his mother. The child agreed. After the child entered the home, the father sent an email to the mother telling her that he was waiting for the child in the street. When the child did not emerge, the father telephoned the police who arrived about an hour later. The mother also telephoned the police.

21. The police records were produced on subpoena. The child was interviewed by the police.

22. The mother deposed that she has been referred by the police to the Domestic Violence Advocacy Service and that she has been advised that a notification has been made by police to the Department of Family and Community Services (“DFCS”). No doubt the relevant records will be available at the final hearing.

23. The child did not go with the father on a planned holiday to Queensland and has not spent time with his father since 4 January 2019.

24. The father now seeks orders re-instating the parenting arrangements so that the child spends time with him from Friday to Wednesday in each alternate week.

25. The mother seeks an order that the child spend time with the father each weekend from 7am until 9pm on Saturdays. She also seeks sole parental responsibility for the child in relation to medical matters.

26. The father relied on an affidavit sworn by him on 24 January 2019. The mother relied on an affidavit sworn by her on 25 January 2019. Both parents relied on the report of Dr B.

27. The ICL had spoken with the child on the previous afternoon. She took the unusual step, at the child’s request, of telling the Court and his parents what the child wanted conveyed. The child told the ICL that he wanted to spend less time with his father, perhaps two or three nights each fortnight.

28. After a discussion with the ICL, each parent changed his or her application. The mother proposed fortnightly time with the father from Friday afternoon until Monday morning. The father proposed that the time be Friday afternoon until Tuesday.

29. There was some agreement about a number of issues:

    ·    The mother will not be present at school when the father collects or delivers the child.

    ·    At changeovers that do not take place at school, the parent who drops the child will remain in his or her vehicle and the other parent will not approach the vehicle.

    ·    Neither parent will attend at any medical appointment for the child arranged by the other.

    ·    Only the parent with whom the child is living on the relevant day will attend school events and activities.

30. The matters to be determined were:

    ·    The child’ time with the father during school term.

    ·    School holidays

    ·    Parental responsibility – the mother seeks sole responsibility in relation to medical and health issues.

31. The ICL supported the mother’s proposal in relation to the time the child spent with his father.

DR B’S REPORT

1. Although Dr B’s report is but one of the pieces of evidence to be considered, and no doubt will be the subject of extensive cross-examination in the final hearing, it was relied upon by both parents and it gives an objective observation of the child, his views and his relationships with his parents.

2. Dr B spoke to the child’ therapist, Dr E, and reported their conversation. Dr E told Dr B that the child appeared as a child who is “overwhelmed, and wants to take back control”. Dr E said that, at a recent therapy session, the child had spoken about walking out on his father’s home and returning to his mother. Dr E said that her impression was that the child had coped with the five night block with his father but that, when the time was extended to six nights, it was too much for him.

3. Dr E said that, in her appointment with the father on his own, she formed the view that he had a limited understanding of the child’s needs and confused his own perspective with the child’s. Dr E said that the father “spoke a lot” about how various “aspects of the child’s care and experience were the mother’s fault, and the maternal grandmother’s fault”.

4. Dr E said that she recently was concerned for the child’ welfare because of his distress about the increase of the time with his father.

5. Dr B said, in relation to his discussion with the child, that the child said he liked his mother more than his father and missed his mother when they were apart in a way that was not matched by missing his father. The child expressed a preference for being in his mother’s care. Dr B commented that the child links his missing his mother to his valuing her rather than to any adverse aspect of his father’s care. This, he said, was a result of the child’ day to day experience of each household rather than to any “alienating” behaviours on the part of the maternal family. He said that the child experienced a greater sense of emotional security in his mother’s care and a degree of emotional insecurity in his father’s care.

6. Dr B did not agree with the father’s view that the mother was overprotective of the child or “sabotaged [his] independence”.

7. Dr B considered the child’ dermatitis and his history of chewing on his hands which both the parents and the child associated with anxiety. The father said that the child’ anxiety was linked to “pressure” in the mother’s home. Dr B did not agree and expressed the view that it was more likely that the child’ anxiety and hand chewing, and his dermatitis, builds up in the period leading up to moving from his mother’s home to his father’s home then abates while he is in his father’s care and further when he returns to his mother’s care.

8. Dr B noted that Dr F at Suburb D Medical Centre, on 19 August 2016, recorded that the child, spoken to alone, told him that he was quite stressed changing houses and preferred to be at his mother’s home. The child said that his father “gets angry about things” and “makes him play sport he doesn’t like”.

9. Dr B said that the child has a complex and ambivalent relationship with his father. He highlighted the child’ recounting of his sadness and distress at his father’s treatment of his mother. The child said “he usually blames everything on Mum” and wished that the father would stop. The child said that he had tried to speak to his father about the father’s behaviour towards his mother but the father “got cranky”. Dr B said that the child appeared to be sad and burdened because his father “goes on and on about mum”.

10. When Dr B asked the child what he would change, if he could change one thing, the child said that he would change his father being cranky at his mother. The child said that the father is sarcastic towards the mother at changeovers and that he would prefer his father to say nothing or “say hello in a nice way”.

11. The child told Dr B that his father’s crankiness is not much directed towards him but towards the mother. Dr B said that “the child’s experience of paternal anger, aggression and disrespect towards the mother (his own foundational attachment figure) is creating burden and insecurity within the child”.

12. The child told Dr B that his father did not “behave sensibly” when meeting medical practitioners with the child and the mother.

13. Dr B reviewed the records produced by the child’ doctors and noted that in October 2014, in a consultation with Dr C with both parents present, the father was recorded to be “hostile throughout consult”. 

14. In January 2015 Dr C recorded that the father was “very hostile towards [the mother] but also becoming this way towards myself for the first time” and that the father appeared to be “angry, defiant and deliberately obstructive throughout the consultation” which was about plantar warts on the child’ feet.

15. In March 2015, Dr F noted that the father “demonstrated significant animosity towards [the mother]...”

16. In April 2015, Dr G recorded that the father “was very rude towards exwife [sic] and the child”.

17. In June 2015 Dr G described the parents as “bickering” throughout the consultation.

18. In March 2017 Dr C recorded a “long telephone conversation with [the father]” regarding “yet another complaint” from a staff member at the father’s “aggressive and threatening behaviour”. Dr C referred to the father’s behaviour having “multiple staff members distressed and in tears”, and the   father’s “abusive language either from phone calls or confrontations in the waiting room”.

19. Dr B discussed these reports with the father who denied that he had behaved in an aggressive manner and said that the doctors had sided with the mother.

20. Dr B stated that the fact that the three doctors documented the father’s behaviour, both to the doctors and to the staff, suggested that it was “well outside the ordinary and quite abusive and disproportionate to context”.

21. Dr B said that this behaviour was corroborative of the mother’s complaints of the father’s aggressive and physically intimidating behaviour at hand overs.

22. He said that the child’ description of the father not behaving “sensibly” was minimising and expressed concern that the child is adapting to supress emotion because he has an anxious-avoidant attachment style and underestimates negative experiences. He expressed concern about the extent to which the father’s behaviour might contribute to the child’ “burden and insecurity”.

23. the child told Dr B that the father gets “cranky” with other people and recounted an incident at a supermarket and that, although he is mostly happy when the child is there, he occasionally gets angry and yells a bit. The child said that his father used to smack but now does not “but I can tell...that he wants to”.

24. Dr B was of the view that the child had gradually become used to the five day block arrangement rather than being happy with the arrangement. The child was unhappy with the increased time which, he said, was “too much” for the child.

25. The child was able to tell Dr B that some of the things that the father “makes” him do, such as Nippers, were beneficial and he told Dr B about things he liked to do with his father. He told Dr B that it was hard to take “things” to his father’s home and about an incident where his father threw a stuffed toy in the bin and the child retrieved it.

26. The child told Dr B that he wanted to change the time he spent with his father. Dr B asked the child what parenting arrangements he would like if he could be “selfish” and the child elected to spend one day each week with his father. Asked what arrangements would be “good for him”, the child said “four days with Dad every fortnight” because “he teaches me different things to Mum”. The child said that his father was good at things like swimming and boats and his mother was good at things like Maths and English. The child said that he did not like doing his homework at his father’s home and he did not take his musical instrument to his father’s home.

1. Dr B’s prognosis in relation to the father/child relationship was clear:

   If the father finds a way to “let go” of the partisan tussle, and “step back”, and “go with” some of the emerging mother-led or mother-like aspects of the child’s character, [the child] is likely to enjoy and benefit from the father’s significant input into his development up through his teenage years into adulthood. But, if the father cannot make this change, then the child is likely to find time with the father more challenging as he individuates further through adolescence...

2. In relation to parental responsibility, Dr B, who had, in an earlier report recommended that the parents have equal shared parental responsibility, stated:

   The mother’s obsessional personality style has made a contribution to the failure of parental shared decision making in the day-to-day, because the mother does not give ground when she considers her view is in [the child’s] best interests...

   I do not hold the father wholly responsible for the failure of shared parental decision-making, as both parents have contributed to the same...But I do observe that the father’s persistent preoccupation with issues of his rights and influence, and his agitation and aggression around these issues, has been disproportionate and damaging to [the child] directly, and indirectly through impact on the mother. The “heat” in the father’s agitation about this issue appears to have not settled at all, despite the father now spending substantial block time with the child.

3. Dr B said that it is important to minimise the requirement for joint decision making.

DISCUSSION

1. The child’s views have been clearly stated, both to Dr B and to the ICL. His wish to reduce the amount of time he spends with his father is of long standing. In 2017, Dr C referred the child to Dr E for counselling. On 16 April 2017, Dr E wrote to Dr C stating that the child’s anxiety and emotional distress had significantly increased over the past few months since the change in care arrangements to a six day block. Dr C said that the child was experiencing anticipatory anxiety leading up to changeover which had an impact on his school work as he had difficulty maintaining concentration. The focus of the child’ distress was missing his mother. Dr E stated:

   [The child] reports that his father does not consider his perspective and feelings and that it appears that he essentially feels emotionally uncontained when in his father’s care. [The child] reports that the weekends are particularly challenging because there is no break at school and that he feels “sad, bored and misses mum”. Of concern, is that [the child] is having thoughts about simply leaving dad’s house when he is there...

   I have spoken to [the child] around mindfulness and grounding strategies to help with the feelings of anticipatory worry about separation from mum. We have also discussed worry containment strategies and how to bring his focus back to the present. My impression is that dad can be erratic and is quick to anger, however, that the most significant issue is his difficulty appreciating and responding to [the child’s] feelings and point of view.

2. Dr B considered that the child was “reflective” and independent in his perspectives and preferences. He stated that the child’ views should be respected in so far as they are consistent with his needs and his safety.

3. The discussion between the child and Dr B about what time with his father he wanted, contrasted with what time would be in his interest, demonstrated a maturity and thoughtfulness consistent with Dr B’s assessment.

4. There is no dispute that the child’s primary and most significant attachment and relationship is with his mother but that he also has a loving relationship with his father.

5. At present, the child is not seeing his father. That situation must change and it is heartening that the child wants to spend time with his father. The challenge is to structure the time so that it is sufficient for the child and his father to rebuild their relationship but not so onerous that the child cannot tolerate the separation from his mother and might decide to return to her home.

6. In considering the arrangement that would best promote the relationship between the child and his father, I give greatest weight to the child’ wishes. It is preferable to impose an arrangement that the child himself wants than to experiment with more time, as the father wants, and risk the child not being able to tolerate it.

7. The orders will provide for the child to spend time with his father from Friday afternoon after school until Monday morning on alternate weekends.

8. I do not propose to re-instate the half school holiday regime. Until the child is comfortable with extending holiday time, the orders will provide that he spend each weekend of the holidays with his father. That will continue over the Christmas holidays unless the parents agree that a block period would be acceptable to the child.

9. I accept the submission on behalf of the father that the variation of the orders relating to medical matters and attendance at school will assist in resolving the immediate problems apparent in both parents attending medical appointments and school functions. It is in the child’ interests that there be no further demonstrations of hostility between his parents in his presence.

10. The matter of parental responsibility, if it remains an issue, can be resolved at the final hearing when all of the available evidence can be properly tested and considered.

11. The ICL referred to Dr B’s recommendation that the father seek assistance from a therapist in relation to the concerns that Dr B identified about the father’s attitudes and behaviour in relation to both the mother and the child. If he should decide to do that, he may provide to his therapist a copy of these reasons and a copy of Dr B’s report.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 6 February 2019.

Associate:

Date: 6 February 2019