JAMIESON & KENNARD
[2017] FCCA 1642
•11 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JAMIESON & KENNARD | [2017] FCCA 1642 |
| Catchwords: FAMILY LAW – Parenting – interim – where mother seeking a change of live with arrangements for boy aged 11 – where ICL and DOCS support a change of live with arrangements – where father is home schooling child and involving child in numerous activities – where child is isolated – where concerns as to impact on the child – Held in child’s best interests to live with the mother and spend weekend time with the father. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 61D, 65DAA, Pt VII |
| Cases cited: Goode & Goode (2006) FLC 93-286 |
| Applicant: | MS JAMIESON |
| Respondent: | MR KENNARD |
| File Number: | BRC 7413 of 2010 |
| Judgment of: | Judge L. Turner |
| Hearing date: | 22 June 2017 |
| Date of Last Submission: | 22 June 2017 |
| Delivered at: | Brisbane |
| Orders pronounced on: | 11 July 2017 |
| Reasons provided on: | 11 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Dr Lake |
| Solicitors for the Applicant: | Salvos Legal Humanitarian |
| The Respondent appeared in person |
| Solicitors for the Independent Children’s Lawyer | Ms Khushal of Bridges Family Law Specialists |
PARENTING ORDERS UNTIL FURTHER ORDER
That all previous spend time with and live with orders are hereby suspended.
That forthwith the child X born (omitted) 2006 (“the child”) live with the mother.
That the mother have sole parental responsibility for the child in respect to education and health.
That the mother forthwith enrol the child in a school of her choosing.
That commencing Saturday 12 August 2017 the mother shall make the child available to spend time with the father at all times as may be agreed between the parties but failing agreement as follows:
(a)Each weekend from 5:00pm Saturday until before school Monday with the father to collect the child from the mother’s residence at the commencement of time and return the child to school at the conclusion of time.
(b)Each Wednesday afternoon from after school until 7:00pm with the father to collect the child from school at the commencement of time and return the child to the mother’s residence at the conclusion of time.
(c)For the first half of all gazetted school holiday periods in even numbered years and the second half of all gazetted school holiday periods in odd-numbered years, with the arrangements in sub-paragraphs (a) and (b) to be suspended during school holiday periods.
(d)For not less than two (2) hours on the child’s birthday and the father’s birthday at such specific times as the parents agree and, failing agreement, from 4:00pm to 6:00pm.
That for the purpose of these Orders:
(a)The gazetted school holiday period begin after school on the last day of school and ends before school on the first day of school.
(b)Where there is an odd number of days in a gazetted school holiday period the child spends the extra day with the parent with whom the child is spending the first half.
(c)Changeover is to occur at 3:00pm with the parent with whom the child is spending the second half to collect the child.
That commencing Monday 14 August 2017 the mother facilitate the child communicating with the father by telephone between 6:00pm and 6:30pm each Monday and Friday, with the father to call the child on the mother’s telephone and the mother to ensure that the child is available to take the call and has a private space in which to receive the call.
That during gazetted school holiday periods:
(a)Order (7) is suspended.
(b)The parent with whom the child is spending time shall facilitate the child communicating with the other parent by telephone at times agreed between the parents, and in the absence of agreement, every second day between 6:00pm and 6:30pm.
That each party will ensure that the child attends such extra-curricular activities as may be scheduled during the time the child is in their care, providing that neither parent enrols the child in any activity that would impose on the time the child spends with the other parent without that parent’s consent.
That each parent shall notify the other of any medical emergency, illness or injury the child suffers while in that parent’s care that the parent considers serious enough to require treatment by a health professional.
That within seven (7) days of this Order the father will notify the mother of the contact details of all current and recent treating health professionals for the child, including but not limited to dentists, optometrists, general practitioners, counsellors and psychologists. ‘Recent treating health professional’ means a health professional who the child has seen within eighteen (18) months of the date of this order.
That treating health professionals for the child are authorised to provide full details of the child’s treatment to each parent.
That each parent is restrained from:
(a)Discussing these proceedings with the child.
(b)Allowing the child to read or see any documentation or correspondence in relation to these proceedings.
(c)Denigrating or criticising the other parent in the presence or hearing of the child, or allowing any third party to denigrate or criticise the other parent in the presence or hearing of the child.
That this matter be adjourned for Mention to 9:30am on 8 November 2017 in the Federal Circuit Court of Australia at Brisbane.
IT IS NOTED that publication of this judgment under the pseudonym Jamieson & Kennard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 7413 of 2010
| MS JAMIESON |
Applicant
And
| MR KENNARD |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are the parents of a boy, X aged nearly 11.
Issue
Currently the child is living with the father and a dispute has arisen as to whether that arrangement should continue on an interim basis.
Proposals
The mother proposes, supported by the independent children’s lawyer (ICL) that:
a)The child should live with the mother;
b)The child spend time with the father; and
c)The mother have sole parental responsibility in respect to education.
The father proposes:-
a)That the current arrangement, whereby the child lives with him and spends time with the mother, should continue; and
b)The father have sole parental responsibility.
Evidence
In considering this issue regard has been had to:-
a)Material as marked on the court file;
b)Notices of Risk;
c)Exhibits;
d)Memorandum to Court;
e)Family Report;
f)Written and oral submissions of the parties;
g)Part VII Family Law Act 1975;
h)Full Court decision of Goode & Goode (2006) FLC 93-286; and
i)Other relevant authorities.
The mother is legally represented.
The father is self-represented.
The court has the benefit of an ICL.
Cross examination did not occur.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
Agreed facts
Before applying the law it is necessary to capture the agreed facts:-
a)The mother is aged 51 and is a (occupation omitted).
b)The father is aged 52 and is unemployed.
c)In 1999 the parties commenced cohabitation.
d)At the time of cohabitation mother had two children from a previous relationship (now aged 30 and 28).
e)In 2002 the parties married.
f)In 2006 X was born.
g)In 2009 the parties separated when the mother left the former matrimonial home after the parties had lived separately and apart under the one roof for some months.
h)After separation X remained with the mother.
i)In 2010 the child commenced living with the father and the mother moved to Melbourne after the parties had entered into a parenting plan.
j)After 2010 the mother telephoned the child regularly and visited the child several times a year.
k)In 2010 the parties divorced.
l)In or around 2011 X commenced formal schooling.
m)In 2012 the father removed X from school and since then the child has been home schooled.
n)In 2014/2015 the mother returned to the Brisbane area to (employment omitted) at (omitted).
o)After the mother’s return, the mother initially spent a few nights a week with the child but that was subsequently reduced by the father to one night a week.
p)In October 2016 the mother commenced parenting proceedings whereby the mother sought 35% care of the child.
q)In December 2016 the father filed a response seeking that the mother spend four nights a month with the child.
r)In February 2017 the parties and the child attended a Child Inclusive Conference with Mr J, family consultant.
s)In the Memorandum to Court the family consultant recommended that the child live with the father and spend each weekend with the mother together with half of the school holidays.
t)In February 2017 the child was placed on the Airport Watchlist, an ICL was appointed and a family report was ordered.
u)In February 2017 it was ordered that the mother spend time with the child every weekend from 5:00pm Saturday to before school Monday.
v)In May 2017, Ms C, family report writer released the family report which recommended that the child live with the mother and spend substantial and significant time with the father with the father to continue to support the child’s musical and sporting achievements.
w)In 2017 the father was investigated by Department of Communities Child Safety (DOCS) who concluded in their letter dated June 2017 that the father posed an emotional risk to the child.
x)In June 2017 the matter proceeded to an interim hearing.
Disputed facts
The disputed facts are:-
a)Whether the father is a perpetrator of family violence against the mother and the child;
b)The impact of the alleged family violence on the child; and
c)Each party’s capacity to facilitate and encourage a relationship between the child and the other parent.
These are issues that may require determination should the matter proceed to a final hearing.
The law
I will now turn to the law.
The principles governing the determination of competing parenting applications are set out in Part VII Family Law Act 1975.
In essence when making a parenting order the court must consider what is in the best interests of the child pursuant to section 60CA.
But as succinctly put by Murphy J in Hardie & Capris [2010] FamCA 1046 at [48]:
“‘Best interests’ is not the application of a theoretical construct but, rather, the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child or children of this particular parenting relationship.”
As discussed by the Full Court in Moose & Moose [2008] FamCAFC 108 at [66], the role of the judicial officer making orders which are in the best interests of the child is to determine the best interests having regard to “the matters set out in section 60CC(2) and (3) guided in consideration of the provisions by the object set out in section 60B(1) and the principles underpinning it contained in section 60B(2)”.
As for the primary considerations in the leading authority of Mazorski & Albright (2007) 37 Fam LR, Brown J refers to such considerations as the “twin pillars”, where:-
a)The first pillar is the importance for a child to have a meaningful relationship with bother parents; and
b)The second pillar is the need to protect children from physical and emotional harm.
In determining what is in the best interests of the individual child, section 61D and section 65DAA come into play and if the child is subject to an equal shared parental responsibility order, then the amount of time to be spent by the non-resident parent, if reasonably practical, must be considered.
Should there be a change of arrangements in where the child should live?
This is a most unusual matter.
The essence of the argument is that whilst X remains living with the father the child will not have the opportunity to lead a normal and balanced life as a child.
The mother is concerned that this arrangement will then negatively impact on the child and the child’s relationship with the mother.
This argument is based on the premise that the father is of the view that X is an exceptionally gifted child and that the father’s main role is to develop X to his full potential; even if that means restricting the mother’s time with the child as that time may undermine X’s achievements.
In order to understand this situation fully it is necessary to look at X, the father, their relationship together and the impact this is having on X.
X
X is described by all that meet him in a positive way:-
a)The father in his December 2016 affidavit describes X as “extremely socialised, polite with a sense of humour, well-spoken and well-mannered, respectful negotiator”.
b)Ms M (a friend of the father’s) states in her affidavit that “X has always displayed polite and friendly behaviour” ([4] Ms M’s affidavit).
c)Mr D (X’s current (hobby omitted) coach) describes the child as “exceptionally polite, well mannered and very punctual” ([4] Mr D’s affidavit).
d)Mr M (X's (omitted) teacher) states that X is a “keen learner with a positive and can-do attitude” ([3] Mr M’s affidavit).
e)Mr J (X’s former (hobby omitted) coach) says that X was “an amazingly well mannered and intelligent boy, with a great ability to engage with and capable of making relationships” ([2] Mr J affidavit).
f)Mr B ((omitted)) Manager deposes that “X is… very intelligent and keen to learn… and has been consistently happy, pleasurable and very well behaved” ([5] and [6] Mr B’s affidavit).
g)Sergeant Mr M (police) said that X is a “very polite young boy”.
h)DOCS, in the 7 June 2017 letter, states that “X is a very well-mannered and mature boy”.
The father maintains that X is an extraordinarily gifted child and therefore is not suitable for mainstream schooling and it is for this reason the father has given up nearly everything to school and look after X.
The father is registered to home school X.
Ms F, the manager of the Home Education Unit (Ms F) explains:-
a)“That a parent can apply to be considered for registration” as a home educator and that “no formal qualification or standards that apply” and that “home educators are not required to teach under the Australia curriculum” and that “they are able to engage with any educational philosophy” ([70] family report).
b)That home educators are “not required to demonstrate that the child is meeting the standards of their peer level and there is no formal testing for children” ([72] family report).
c)That the father “has met the standards and has provided evidence to suggest that X is progressing in his education” ([71] family report).
d)That the father “has not elicited support from other teachers and she was not sure whether he avails himself of community supports” ([70] family report).
The father devotes three pages ([8] father’s December 2016 affidavit) to explain why X is an extraordinary and gifted child and to details his achievements to date which include:-
a)Reading, speaking and writing two languages;
b)Reading, speaking and understanding (language omitted);
c)Learning (language omitted);
d)Understanding, speaking and writing (language omitted);
e)Reading books from aged 4;
f)Swimming three different strokes;
g)Being advanced in learning such as doing high school instead of Grade 5 in 2017;
h)Participating in (omitted) competitions;
i)Participating in (omitted) competitions;
j)Playing two musical instruments;
k)Playing in (omitted) tournaments;
l)Operating robotic systems;
m)Playing in (omitted) tournaments;
n)Rock climbing;
o)Writing stories;
p)High computer skills;
q)Learning body language; and
r)Studying political systems.
As to whether X is truly a gifted child at this stage is a complete unknown:-
a)In a Confidential Guidance Report from (omitted) State School dated December 2011, it is noted that “X is a five year old boy who completed the (omitted) Preschool and Primary Scale of Intelligence. His general cognitive ability as estimated by this assessment is in the very superior range”.
b)The family consultant commented in the Memorandum to Court that “I would estimate he has an above average intelligence and he is very talented in extra-curricular activities such as (omitted), music and (omitted)”.
c)The family report writer states that “X presented as a serious and formal child… presented as using large words potentially in an effort to appear intelligent but his use of such did not fit the topic or was not the correct choice” ([48] family report).
d)DOCS in the 7 June 2017 letter noted “that there is no evidence to support that X is performing above his age level academically due to him being home schooled” and that “reports from Ms F from the Department of Education and Training indicate that the sample of work submitted indicates that X is working at an appropriate level for his age”.
e)Ms F, the manager of the Home Education Unit (Ms F) explained that the father elected for X not to sit the NAPLAN test and she has not met the child or had contact with the child ([72] family report).
f)X (nearly 11) has not had any testing as to his intelligence or academic level since the age of 5.
X is involved in a range of activities including:-
a)Game of (omitted).
b)Luminosity on computer.
c)(omitted) lessons four days per week.
d)Project based home schooling.
e)(omitted) building.
f)(omitted) lessons.
g)Music lessons.
h)(omitted) Gym.
The father’s preference for X to be involved in his education and his activities rather than see his mother has been repeatedly echoed by the child:-
a)“He would prefer to do his hobbies, (omitted) and (omitted) than see his mother. When asked whether his mother could take him to his events he stated ‘my mother is not interested in those things, she’s interested in money… so she can tell Centrelink, she wants to tell Centrelink about the family tax benefit and the child support. If she is telling you that she wants to spend more time with me, she’s a liar.’ As he stated this, his voice became firmer in tone and louder in volume and he had tears in his eyes” ([57] family report).
b)“I have no problem seeing my mum as long as it doesn’t affect my life on this side” referring to his time with his father and that “if I go to live with mum all my efforts are destroyed” (Memorandum to Court).
The mother is concerned that X has no friends and is living in isolation with the father.
X informed the family report writer that he has three best friends but it is noted by the family report writer that “upon exploration, he indicated that he knows his friends primarily through his (omitted) lessons but he does not see them outside of his weekly class, stating ‘if I do it’s co-incidental’. He has not had a sleepover with friends either at their home or his, stating that his friends all tend to go to sleep at 10pm, so this is why he does not sleep over. He also reported that he does not visit with friends; either at his own home or at theirs” ([50] family report).
DOCS, in their interview with X, noted that he “seemed to exaggerate the difference between his mum and dad’s house” and “seemed to be trying to convince us he had lots of friends”.
X has a very high opinion of the father and presents as being indebted to the father for all of the efforts he has put into educating X:-
a)“The father as “very generous, kind and loving. He does try to correct my mistakes. He’s a perfectionist in a good way. He spends lots of money and time just for me” and when asked how he knows this X replied “both he told me and I’ve worked it out” (Memorandum to Court).
b)The father is an “extremely good man… magnanimous; he spends more money and time on me than he is supposed to, he focuses on me, he wants me to have a good career” ([51] family report).
Concerns have been raised as to how aligned the child is with the father:-
a)“X presented as a very formal, somewhat pseudo-mature child” and “in my view has been inappropriately prepared for the interview with me. It was noted that a number of X’s statements and choice of words closely paralleled that of the father” (Memorandum to Court)
b)As to the observation between the father and the child it “felt like a demonstration of their skills, rather than an observation of a natural parent-child style; it was mostly educational in nature and felt quite formal” ([66] family report).
c)That “throughout the observation, X was noted to provide a running commentary to the Family Consultant through the one way mirror, explaining what they were doing during the observation and holding up items in the mirror to show things. At one point the father and X were noted to discuss whether they were seated would be observable to the Family Consultant” ([65] family report).
The Father
X has been living with the father since 2010.
Based on an email received by the father from Ms J (a Gifted Children’s Advocate) dated 7 August 2011 (Exhibit C) the father assessed that no school would be good enough for X and decided less than a year later to home school the child.
The father in 2012, (after X completed several months in Grade 1) commenced home schooling.
The father explained during 2017, DOCS interviews that the only reason he home schools X is because there is no program at school that was advanced enough for him and that the father is the only one who can provide X with what he needs.
The father has specific expectations as to what he wants from and for X and how this can be provided by the father as illustrated by the following:-
a)The father informed DOCS in 2017 interviews that:-
i)“The most important thing for him is for X to have good manners and be a good man”.
ii)“His goal for his son is to have a bright future in a safe environment”.
b)The father states that:-
i)“Time management and punctuality” is important and that the code of behaviour for him is “to be well presented, be punctual and prepared to do your best” ([7] father’s February 2017 affidavit).
ii)“X is a role model for other parents about eating all good and health food but not junk food and unhealthy food” and that the father “worked hard to stabilise this habit for X because eating in early years of childhood is extremely important” ([8] father’s February 2017 affidavit).
iii)X is not allowed to “watch violence and waste timing programs and movies” ([8a] father’s February 2017 affidavit).
iv)X must be caring about “being neat and tidy. What is wrong with these excellent behaviours” ([8a] father’s February 2017 affidavit).
v)“I always tell X; learn to act in a way that I am not alive tomorrow, do not do anything for me, do it for yourself, for your today and therefore for your future, for your society for keeping good things alive” ([10a] father’s February 2017 affidavit).
vi)“Yes I control my son, I control myself and we control each other also to change each other’s mistakes to a positive behaviour, to gain for successes, to be more polite, to talk nicely, to respect women, to respect people, to respect kids, to encourage each other to control our minds and words”([12] father’s February 2017 affidavit).
vii)“Being a perfectionist is different with doing responsibility in perfect way” ([9b] father’s February affidavit).
viii)“X has a lot of successes many aspect of life because of living with me, not just from my words, with available documents” that
ix)“X is able to reach higher level in any aspect of his life with continuing living with me… X could and can be the best of his age because of my efforts and his cooperation” ([1], [2] and [3] father’s February 2017 affidavit).
x)“I proudly accepted to receive X and proved it by eight years documented successes” ([4] father’s February 2017 affidavit).
xi)“I gave the most precious thing in my life and it was my time, days and nights for 7 years to give him the best of everything he desired and am so happy because in return he is at the top of his age group in any aspect of life”.
xii)“It is totally up to you his father to plan his future life” (email dated 25 February 2014 from the father to the mother).
xiii)“It is totally up to his father to plan X’s life as his father, full time carer and teacher also” (email dated 25 February 2014 from the father to the mother).
xiv)“X has a meaningful life and according to his life others have to plan their life with him like myself I quit my job I stayed at home to teach him and spend all of my time from early morning till late night for him happily and am proud of it to him a real life who deserves it” (email dated 25 February 2014 from the father to the mother).
xv)“He and X have a long term plan to help and support each other… He repeated that X has a future ahead of him reporting that they are in the middle of their plan” ([41] family report).
The father does not see X as a child as illustrated by the following:-
a)The father explained to DOCS during 2017 interviews that it was appropriate to expose the child to grown up conversations as “X is not like normal children” and “he believes that X is able to handle it because of his high intelligence”.
b)“X is ahead of his age and I do not see any problem to say it” ([7] father’s February 2017 affidavit).
c)The child’s “achievements are extraordinary” ([8] father’s December affidavit).
d)X is “academically….more advanced than his peers, in sport he is above his peers, socialising he is better than his peers, in health he is healthier and stronger than his peers, in knowledge he is above than his peers” ([12] father’s December 2016 affidavit).
e)“He is not a child and got a lot of activities and tasks daily then all of them has to be on time” (email dated 6 April from the father to the mother).
f)“X is not a child he is extremely mature and knows even the value of seconds… End of the story” (email dated 6 April 2014 from the father to the mother).
g)“I do not treat him like other 6 years old most of the time because his brain is not 6 years” (email dated 9 December 2013 from the father to the mother).
h)“X is not a kid and has to be a kid” (email dated 25 February 2014 from the father to the mother).
i)The father has repeatedly brought the child to court (even after being told by the bench that it was inappropriate to do so).
j)The father has openly discussed the adult issues and court proceedings with the child as evidenced by the following:-
i)During 2017 DOCS interviews the child stated that “Mum started the court case stupid reasons cost me CSA money 75 thousand we could not leave Queensland because of her” and “it would be better without the court thing more worry each day my second or third lawyers” and “I want mum to finish the court case just need to close case it has taken her 2 years”.
ii)During 2017 DOCS interviews the father said that “he has allowed X to read emails from his mother so that X is able to know the truth about her”.
iii)The father deposes that in respect to showing X the mother’ emails addressed to the father that “I cannot teach X to read analyse think then decide on the other hand leave him in dark side of a story and tell him no you have not to read this” ([12a] father’s February 2017 affidavit).
iv)As to explaining the orders being sought by the mother to the child the father argues that “there was nothing confidential it was related to him and he had to decide about it… I never forced this valuable boy to read something but whenever he asked a question it was free for him to know the truths and reality even reading emails and text messages. I will not keep him in dark side of information” ([4] father’s December 2016 affidavit).
v)X confirmed the extent of his involvement and knowledge of adult issues in an email he wrote to the mother dated 4 December 2014 which read “Dear Mummy, if I read these emails it is because I am free to ask any question about anything and I am also allowed to read texts and emails and in this regard I am a limit-free boy”.
vi)In an email dated 25 February 2014 the father writes to the mother “in our house nothing is covered then he knows all of these emails”.
vii)The father informed the family report writer that “when X asks him questions about the litigation he ‘always give him the right information’ as he believes it is ‘important for him to believe that I’m trustful and he can believe me’” ([40] family report).
viii)When the family report writer asked the child to describe his mother, X “asked what proof was required. When asked what he meant by that he talked about documents that he has viewed. When asked to elaborate he talked about evidence of what she did” ([54] family report).
ix)The family report writer noted that “X appeared to have a strong awareness of the parental issues stating ‘she is not understandable. This case is about me, but when I ask her about it she gives me two reasons (why she has launched litigation). She couldn’t afford the child support amount but I think it’s a lie, my father showed me the official letter. She can’t pay 300 bucks a fortnight? She’s pretending that she can’t’” ([56] family report).
DOCS observed after their home visit that:-
a)The father’s relationship with the child is obsessive.
b)The father has no life of his own outside of him caring for the child.
c)X’s basic physical needs are being met, however, X would be expected to act like an adult as his father would not allow him to demonstrate childhood behaviours.
d)There are concerns as to how X’s environment would be affecting his emotional wellbeing.
As to the father’s discipline of X:-
a)The father explained to DOCS that he takes away privileges (such as when the child did not hold his hands the way he was told to by his father during a (omitted) game) and by not talking to the child.
b)That it is “needed for X to see consequence of his bad behaviour” and that the father can put this in place as “it is my responsibility as a parent” ([9] father’s February 2017 affidavit).
c)“That in this house that X is living there is a full explanation for anything he asks or wants to know and sometimes he needs to feel it when he does something what is the meaning of it. To stop that behaviour I explained him and when it goes on and on for two days I told him now I am doing what you did to show you how it works. We do not even words like punishment in our house, we do not use any negative word but he knows everything about whatever he has to know and sometimes he has to learn from direct acts and not talk. He does not use war but knows compartment of gun bullet and how they do act and what is the result of this was then he decides to use it or not use it. Whenever I feel something is necessary for him I will do it because for me and my life he is the most important person not others not myself and not money” (email dated 9 December 2013 from the father to the mother).
The father is not supportive of the mother’s relationship with the child:
a)“It appears that the father has limited capacity or willingness to promote X’s relationship with the mother. He does not appear to value this relationship or recognise its importance in X’s sense of self and long term well-being” ([83] family report).
b)“The father is, as he should be, extremely proud of his son” but “I cannot, however, say it is reasonable for the father to think that if X spends increased time with his mother this will erode everything away or as he says ‘interfere with X’s life’” (Memorandum to Court).
The father is against X attending school, which is the likelihood if the child is living in the primary car of the mother deposing that “sending him to school destroys his future as well as his past efforts, both together. Reaching to this place was not easy for both of us, it required a lot of efforts and we can go ahead better and better… sending X to school makes my responsibilities less and less but I am happy to do more and more to give the best to him” ([15] father’s December 2016 affidavit).
The father informed the family report writer that if the child was ordered to attend main stream schooling that “it means the Judge doesn’t consider his best interests” and stated that “he does not seem to have in the school system… They were ‘not progressing him fast enough’” and stated “‘if I had my way he would be sitting in University’ currently” ([44] family report).
DOCS in their letter to the mother dated 7 June 2017 raise the following concerns about the father and his care of the child, such as:-
a)That X is isolated in the care of the father.
b)The father is very controlling, expressive and excessively strict with X.
c)The father exposes X to negative comments about his mother and adult communications which would impact on X forming a positive attachment to his mother.
d)X is fearful of his father’s disapproval.
e)The father is not willing to support X emotionally as he has a negative attitude in relation to X receiving counselling or psychological support.
Impact on X
During the DOCS interviews with X, it was noted that:-
a)When asked what he wanted “X began to cry uncontrollably for around 15-20 minutes his body shook, he gasped for breath a few times, burped and gagged almost vomiting a number of times. X was breathing heavy for some time after he was crying and it took another 10 minutes for him to calm himself enough that he could talk”.
b)When asked why he was crying, X replied “I am living two lives I never felt like this before, anxious, negative emotions heavy heart never felt that before”.
c)X said that the father “would not be extremely happy” if he knew the child payed Xbox at the mother’s house and that he would not like that X has a dog at the mother’s.
d)As to having to hold his hands the right way when playing (omitted) and getting in trouble with the father, X explained that “I made it up to him did better in the other (omitted) games” and that the child “don’t like disappointing dad”.
DOCS in the 7 June 2017 interview expressed the following concerns about X:-
a)His fear of disappointing the father “causes him anxiety and pressure to achieve his father’s high expectations”.
b)“X feels he is living two lives due to the family law proceedings”.
c)X does not have the opportunity to socialise with children his own age away from the father.
d)That the father’s punishment of “not talking to X for days for minor behaviours is emotionally damaging”.
e)That the father exposing the child to “adult communication and negative comments about his mother” places X in a position where he is “not emotionally developed to process this information appropriately” and the child “feels pressured to say negative things about his mother to please his father”.
f)That “X loves both his parents and he would feel a sense of loyalty to both his mother and father” but the father is “placing him in the middle has caused X to be worried and upset as he appeared to be very anxious about what he can or cannot say”.
On 7 June 2017 DOCS sent a letter to the mother stating that “the outcome of the assessment for X is substantial emotional abuse resulting in emotional harm” with an assessment that the father is the person responsible for this harm.
DOCS however have chosen not to become involved because “X is not assessed as a child in need of protection due to his father provided adequate and appropriate physical care to X” and that the “mother is also able to monitor her son’s emotional wellbeing during contact visits and she can assess support should this be deemed necessary in the future”.
The family report writer also raises concerns for X:-
a)“In the home of his father X is home schooled and is encouraged to focus his attention on his academic, sporting and musical pursuits with vigour valuing these as the highest priority. In the home of his mother X is encouraged to socialise, explore his community and engage in freedoms that he does not appear to have access in the home of the father. The difficulty for X is that these two worlds now appear to be in competition… This is likely to result in X feeling torn between his parents and the lifestyles they provide.” ([76] family report)
b)“In these circumstances there is a risk of parent-child conflict occurring in either home as the child may advocate the views of the other parent out of loyalty and/or petulance.” ([77] family report).
c)“X’s presentation during the Family Report interviews appears to have been somewhat different to that which he is displayed during Child Inclusive Conference only eight weeks earlier, which may suggest that X felt pressure to modify his information or may suggest he is under stress.” ([78] family report)
d)“There appears to be limited commonalities between the parent’s parenting and their respective home environments, with culture appearing to be the only commonality between them. This is likely to result in X having to adjust from one home, with its rituals, customs and mores to another, requiring a period of adjustment.” ([79] family report)
e)“At ten years of age, X’s developmental needs are changing. For children of this age their involvement with and acceptance by his peers becomes more important and they should developing peer groups of the same age and gender. Over the coming years, their peers and significant adults will influence their opinions and attitudes. They will become pubescent and romantic interests will begin. By fourteen or fifteen years of age their peer relationships will become more preferential than family and they will develop autonomy.” ([81] family report)
f)“X will need to learn to navigate the complexities of the world; peer groups, communicating with others and learning the nuances of society. He will learn a lot of these behaviours through modelling; by engaging with others himself, or by watching others interact and learning from these observations.” ([82] family report)
g)“For X to reach his social developmental milestones it is in his best interests to be exposed to ongoing opportunities for socialisation in a less structured manner, in order to promote conversation and engagement.” ([82] family report)
h)“It is likely that X’s current sporting and musical appointments are so extensive that they appear to be impacting on the capacity for the mother-son time… If X remains in the father’s care, the older he gets and the more involved in sporting and musical activities, the likelihood is that the mother will be more and more excluded from his life.” ([85] family report)
i)“X’s relationship with his mother appears impacted by current conflict. This was especially evident during the observation and interview with X, where he initially presented as hostile but appeared to warm over time. He sated an unwillingness to talk about the things he enjoys about his time with the mother and this is a concern.” ([92] family report)
j)“Similar to the mother’s: X’s relationship with his father also appears impacted by the current conflict… X’s affection towards the father appeared exaggerated as if demonstrating their relationship to an audience… indicators… suggest that they have an enmeshed relationship. In enmeshed relationship, the psychological boundaries between parent and child have not fully developed and experiences are often viewed as shared… In these relationships the child is often highly attuned to the enmeshed parent’s needs and dependence and assumes responsibility for protecting the parent.” ([93] family report)
k)“X and the father appear to live an isolated life; whilst they engage with others such as coaches and tutors, this engagement appears to be at a superficial level.” ([94] family report)
l)“If the Court finds it is in X’s best interests to live with his mother, this transition is going to be a very challenging one for X as it will mean not only a change of primary caregiver but a return to mainstream schooling. He has resided almost all of his life solely with his father and will likely result in a sense of loss for X.” ([95] family report)
m)“However, there is much to gain in X spending significant and substantial time with his mother; meeting the values that his father does not appear to hold in high regard.” ([96] family report)
n)“…it is likely that there are advantages and disadvantages to mainstream education, including the development of peer relationships, the ability to be assessed by teaching professionals and the capacity to be monitored by those outside the family as a safety net for X. However by attending mainstream school, X will lose the one-on-one focus and education his father provides and this is likely to change the dynamic of their relationship.” ([97] family report)
Conclusion as to where the child is to live in the interim
In my docket is most unusual for an order to be made changing the residence of a child on an interim basis.
But this matter is unusual as the father’s actions are impinging on the primary considerations undermining the objects of Part VII Family Law Act 1975.
This is supported DOCS findings of substantial emotional abuse resulting in emotional harm of the child and the family report writer’s observations that “despite his assertions to the contrary his proposal for time should X live with him seems to restrict this relationship (referring to the mother) and is not child focussed”.
X is no longer a young child; he is nearly 11 and is fast approaching puberty and teenage years.
This is crunch time for X and consideration must be given as to what will be in his best interests moving forward.
To best assess this, consideration must be given as to what each household has to offer X.
If X was to remain living with the father the positives are that:-
a)The child will remain living in familiar surroundings with his father who has been his primary carer since 2010.
b)The child will continue to do the musical, learning and sporting activities that he currently engages in.
If X was to remain living with the father the negatives are that:-
a)The child’s meaningful relationship with his mother will be significantly curtailed and may in time diminish more.
b)The child will be required to meet the expectations of the father.
c)The child will remain in isolation having limited interaction only with coaches, tutors and children at sporting and musical events and this may impact on his social skills.
d)The true academic and intellectual ability of the child will not be assessed.
e)As explained by Ms F to the family report writer:-
i)The child will not be eligible for a Certificate of Completion at the end of schooling.
ii)The child is not eligible to receive an OP score as home schooling is not approved by Queensland Curriculum and Assessment Authority.
iii)It may be quite difficult for the child to obtain necessary credit points if the child wishes to attend university. ([73] family report)
f)The child will not be able to do things that other children regularly do like watch movies, play video games, have sleepovers, go out with friends and have a family pet.
g)The child will continue to be torn between two worlds.
h)The child would continue to be exposed by the father to adult issues.
i)The child may be exposed to continual emotional harm by the father.
j)There would be an expectation that the child act like an adult.
If X was to live with the mother the positives are that:-
a)The child can have a more social life and be engaged in activities that children of his age do.
b)The child can develop friendships.
c)The child can be a child.
d)The child can be properly assessed academically.
e)The child can maintain a meaningful relationship with the father.
f)The child will not have the continued pressure of meeting the father’s expectations.
g)The child will not have to hide from the father what happens in the mother’s household.
h)The child can undergo counselling and therapy if required for his stress.
i)The child would not be subjected to adult issues and documentation regarding court proceedings.
If X was to live with the mother the negatives are:-
a)The child would be separated from the father and the life he has been leading with the father.
b)The child may need to reduce his extracurricular activities such as sport and music.
c)The child will need to attend mainstream schooling, which the child has indicated that he does not want to.
Having weighed up the positives and negatives in each household, I find that it is in the child’s best interest on an interim basis to live with the mother.
I base this finding on the following:-
a)This will remove the child from any further parental emotional harm from the father.
b)This will enable to the child to establish, maintain and grow a meaningful relationship with both the mother and the father.
c)This will enable the child grow socially and to establish peer groups and friendships and to be involved in age appropriate activities and be a child.
d)This will enable the child to be academically assessed and placed in the appropriate schooling to meet his needs.
Child’s time with the father
The next issue is the child’s time with the father.
The mother and the ICL are seeking a short moratorium of time to enable the child to settle in with the mother and for the mother to organise schooling for the child.
I agree.
I find that one month is sufficient time for that to occur.
The ICL and mother’s proposal for time with the father is substantial and significant providing for each weekend from 5.00pm Saturday to before school Monday, Wednesday afternoon until 7.00pm and half of school holidays together with special event time and communication.
I adopt this proposal as this provides the child with plenty of time to engage with the father in the activities which they have done together for so long.
I also adopt the orders being sought by the ICL and mother in respect to exchange of information and restraints.
Parental responsibility
The last issue is parental responsibility.
The mother is seeking sole parental responsibility in respect to education.
The father has made his position very clear as to not being in agreement as to any mainstream schooling for X.
As the child is living primarily with the mother and as the home schooling issue cannot continue in the mother’s care, then I find it is in the child’s best interest for the mother to have sole parental responsibility in respect to education on an interim basis.
I further find, as there may be a need for X to attend counselling due to the emotional abuse and changes in his circumstances, that on an interim basis the mother is to have sole parental responsibility as to medical issues.
Future direction
As to the future directions of this matter, I adjourn the matter for four months to see how X is adapting to the change of residence.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 11 July 2017
Key Legal Topics
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Appeal
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Damages
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Duty of Care
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Negligence
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Remedies
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