Hope and McCall

[2009] FamCA 413

FAMILY COURT OF AUSTRALIA

HOPE & MCCALL [2009] FamCA 413

FAMILY LAW – CHILDREN – the child’s serious health issue – selective mutism –consideration of that issue and the lack of time spent by the child in the father’s care – implications of possible parenting orders – expert evidence – the child’s best interests

Family Law Act 1975 (Cth)

APPLICANT: Mr Hope

RESPONDENT: Ms McCall

INDEPENDENT CHILDREN’S LAWYER: Herbert Geer

FILE NUMBER: BRC 3860 of 2009

DATE DELIVERED: 19 May 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: The Honourable Justice Rose

HEARING DATE: 19 May 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Schultz Toomey O'Brien

RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Herbert Geer

Orders

1. That ... born … December 2002 (“the child”) live with the mother.

2. That the parties use their best endeavours for the child to spend periods of time with the father as agreed between the mother and father in writing.

3. That the mother provide a written authority to the Principal of all schools attended by the child to furnish the father at his request and expense (if necessary) with copies all school reports, counselling reports and other correspondence or memoranda in relation to the child AND THAT such authority be provided by the mother within 14 days from today.

4. That pursuant to Order 3 the mother provide a written authority to the Principal of such other schools that the child may attend in the future.

5. That the mother provide written authorities to all health professionals consulted by the child in relation to her health issue of Selective Mutism and any other issue of anxiety which the child may be experiencing for the purpose of furnishing to the father upon his written request written information in relation to diagnosis, treatment and prognosis with regard to such health issues.

6. That the mother forthwith furnish to the father copies of the written authorities referred to in Orders 3, 4 and 5 upon such written authorities being provided to the persons referred to in those Orders.

7. That the proceedings be removed from the Active Pending Cases List.

Notations:

A.The mother shall use her best endeavours to cause the child to consult the Selective Mutism Clinic on or before the expiration of three (3) calendar months from today.

B.The father is willing to make an unspecified financial contribution to the fees and expenses associated with the child taking part in such consultations upon being given written details in that regard by the mother.

C.No order was sought by the father or the independent children’s lawyer to the effect of rebutting the presumption of Equal Shared Parental Responsibility provided in s61DA of the Act.

IT IS NOTED that publication of this judgment under the pseudonym Hope & McCall is approved pursuant to s121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC3860 of 2009

MR HOPE

Applicant

And

MS MCCALL

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings were listed before me for day one of parenting proceedings utilising the Less Adversarial Trial practice and procedure.

2. The father was represented by his solicitor.

3. The independent children’s lawyer appeared.

4. There was no appearance by or on behalf of the mother.

5. I am satisfied that the mother received reasonable written notice of the hearing fixed for today.  The mother had responded to the Court by seeking to participate by telephone link, though so far as I am aware upon the mother being left telephone messages and emails sent to her email address there was no response from her.

6. The evidence considered included the following:

   (a)Family Report of S L filed by the independent children’s lawyer on 27 February 2008;

   (b)Affidavit of Ms C filed by the independent children’s lawyer on 9 October 2008 annexing the report by Ms M, child psychologist dated 19 September 2008;

   (c)a further Affidavit of the independent children’s lawyer filed in Court today, albeit not served on the mother due to her non-appearance at today’s hearing;

   (d)oral evidence given by the family consultant, Ms B.

Historical background

1. The background to these proceedings is as follows.

2. The parties commenced a de facto marriage relationship in March 2001 which concluded on their separation in July 2002.

3. The child of the parties’ relationship, who is the subject of these proceedings, is a daughter born in December 2002 (“the child”).

4. The child is six years of age and has lived with the mother since birth, subject to irregular and very limited periods of time spent with the father.

5. The father married in May 2005 and both he and his wife have three children aged approximately 5 and 3 years, and 18 months.

6. The mother has remarried and both she and her husband have a child of their relationship who is aged approximately 2 ½ years.  Living with the mother are the paternal grandparents.

7. There is no dispute that the child suffers from a serious psychological disorder described as Selective Mutism.

8. The child also suffered trauma as a result of being involved in a motor vehicle accident which occurred in early 2008, ironically whilst travelling with the paternal grandparents to meet the father on a day that had been organised for him to spend time with the child.

9. The father has not had any period of time or communication with the child since the motor vehicle accident occurred.

10. There have been a number of court events in these proceedings in which the mother did not appear, nor was she legally represented.

11. The matters which I am required to take into account with regard to the best interests of the child are as set forth in s60CC and are constrained by the limitations of the evidence.

12. It is clear on the expert evidence before me that the child suffers from anxiety which in a social context has either been the cause or impacted upon her Selective Mutism.  The evidence suggests that the child does not manifest that disorder in her relationship with the mother, the paternal grandparents, as well as other members of the mother’s family unit.

13. I am satisfied that the mother has not utilised the child as a means of manipulating the proceedings in order to achieve an end that there not be any orders made in favour of the father.  The reason lies in the undisputed evidence before me that the child has manifested this disorder or serious emotional issue at school.  Recently though, there appears to be some progress, albeit small, in that the child spoke a word at school “book”.

14. There has been a recommendation by the experts, in particular the Departmental child psychologist and counsellor, Ms M that the mother accompany the child for consultation and perhaps treatment at a clinic which is dedicated to providing professional advice, treatment and assistance for children who unfortunately suffer from Selective Mutism.  That clinic is the Selective Mutism Clinic in Sydney (“the clinic”).

15. I am satisfied on the evidence before me that the mother has had her attention drawn to this clinic but for reasons best known to her, has shown little interest in taking steps for the child to receive the potential benefit of attending the clinic.

16. Part of the difficulties in the hearing of this matter is due to the lack of appearance by the mother, and the evidence that she may have been able to give. As a result, I do not have evidence of the mother’s financial circumstances and whether that is a factor which has influenced her rejection of the recommendation of the child attending the clinic, or whether there are other reasons, for example, contrary professional advice which she may have received.

17. There is a tension in the proceedings between the consideration of making an order for the child to spend periods of time and communicate with the father in order to advance her relationship with him, and yet on the other hand, minimising or avoiding possible stress that parenting proceedings inevitably create for the parents, in this case the mother, potentially indirectly and adversely affecting the child.

18. The object of court proceedings do not sit comfortably with the medical imperatives of assisting a child who is apparently suffering a considerable degree of anxiety in what is referred to as social anxiety which could only be accentuated to her disadvantage if orders were made which compelled the parties to provide periods of time that the child spend with the father, whether the mother (who is the primary carer) agreed or not.  That is the dilemma which must be faced.

19. I have been assisted by the evidence given by the family consultant today.  The family consultant, recognising this dilemma, suggested that a long-term view be taken by the father, namely that children once they overcome any anxiety or stress which they are currently experiencing, often give way to curiosity in wanting to learn more about the parent with whom they have not been living and seek that parent out to resume a relationship.  The family consultant also recognised that the pressure and tension of continuing litigation by the father may very well be counter-productive in terms of the child’s best interests for reasons previously explained.  Therefore, it may defeat the very purpose the father seeks to achieve, namely to re-establishes his relationship with the child, supplemented by and based upon regular periods of time that the child spend with him.

20. I have been ably assisted by the submissions of an experienced independent children’s lawyer and the solicitor for the father.

21. I provided a short adjournment so that the father may provide further instructions.

22. It was implicitly agreed, or the position implicitly taken by the father, that it was not in his interests to continue this litigation.  The father emphasised to me during the course of his oral evidence this morning that his principal concern is with the child’s well-being.  The father is willing to wait to see how things progress and that he does not want to risk the opportunity to get to know the child.

23. Consistent with that, the solicitor for the father informed me of instructions that the father consents to orders which provide for the child to live with the mother and the child to spend periods of time with him as agreed between the parties in writing.

24. The substance of those orders are the same as the orders recommended by the independent children’s lawyer though with a qualification, namely that so far as periods of time with the father, the mother’s consent was “not to be unreasonably withheld”.  With respect to the independent children’s lawyer, I am not convinced that it is in the child’s best interests to make such an order given that it immediately creates the potential for further disagreement as to whether consent was reasonably or unreasonably withheld.  It is unlikely that the father would have confirmed to his satisfaction whether consent may be unreasonably withheld short of regular communication with the mother, or further litigation, apart from the possibility of a medical report.

25. In view of the non-existent communication between the parties there is obviously considerable effort that will be required for communication to be restored to a meaningful level.

26. The father impressed me as a sincere parent who is genuinely concerned with the child’s well-being.  Not unnaturally, the father seeks to be kept informed of the child’s progress at school as well as addressing the child’s health issues.  Therefore, I will make appropriate orders which for the purpose of being enforceable must only be directed to a party to proceedings, namely the mother.

27. The independent children’s lawyer impressed upon me that there should be a notation to the effect that the mother use her best endeavours to cause the child to consult the clinic within three months from today as a means of encouraging her to take that step, which on the basis of the unchallenged expert evidence, can only be in the best interests of the child.  I will make that notation and also include that the father is willing to provide an unquantified financial contribution associated with such consultation.

Equal shared parental responsibility

1. I raised with the solicitor for the father and the independent children’s lawyer s61DA of the Act whereby there is a presumption of equal shared parental responsibility in favour of the parents of the child.  I also drew their attention to the provisions of s61C.  It was made clear to me that no order was sought in terms of either of those sections.  The effect of that would be that the presumption remains undisturbed.

2. With respect to those submissions, they are accepted and will be the approach taken by me.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Hon. Justice Rose

Associate: 

Date:  21 May 2009