Julius and Dunlop

[2017] FCCA 425

FEDERAL CIRCUIT COURT OF AUSTRALIA

JULIUS & DUNLOP [2017] FCCA 425

Catchwords:
FAMILY LAW – Parenting – mother administering melatonin to child over the protests of the father – mother giving undertaking to stop administering that hormone – unsubstantiated allegations of interfering with child – no alteration to equal shared parental responsibility – short-term operation of orders – increased time for father.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 65DAA

Cases cited:

Goode v Goode (2006) 36 Fam LR 422

Applicant: MR JULIUS

Respondent: MS DUNLOP

File Number: MLC 7258 of 2009

Judgment of: Judge Wilson

Hearing date: 14 December 2016

Date of Last Submission: 14 December 2016

Delivered at: Melbourne

Delivered on: 9 March 2017

REPRESENTATION

Applicant in person

Respondent in person

ORDERS

1. Orders 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 20(d), 20(h), 21, 22, 23 and 24 of the orders dated 1 April 2010 remain in full force and effect.

2. Orders 12, 18, 19, 20(a), 20(b), 20(c), 20(e), 20(f) and 20(g) of the orders dated 1 April 2010 are discharged.

3. In addition to any time spent pursuant to the orders dated 1 April 2010, the child X born (omitted) 2006 (“the child”) spend time with the father as follows –

   (a)commencing on the first weekend of terms 1, 2 and 4 and the second weekend of term 3, each alternate Friday from the conclusion of school until the commencement of school the following Tuesday; and

   (b)from the conclusion of school each alternate Monday until the commencement of school the following Wednesday.

4. The mother is hereby permanently restrained from administering the hormone melatonin to the child without the written consent of the father.

5. The parties use a communication book to share information relating to the child.

6. The matter is adjourned to this Court on 12 March 2018 at 10.15 a.m. for directions.

IT IS NOTED that publication of this judgment under the pseudonym Julius & Dunlop is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7258 of 2009

MR JULIUS

Applicant

And

MS DUNLOP

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case concerned the future parenting of X born (omitted) 2006 (“X”), a nine-year-old boy born to the applicant father Mr Julius (“the father”) and the respondent mother Ms Dunlop (“the mother”).

2. Four main issues were raised in this litigation. They were –

   a)

   whether the mother and father should continue to have

   
   

   equal shared parental responsibility for X or whether the father should have sole parental responsibility for X;

   b)with whom X should live;

   c)whether orders should be made forbidding the administration to X of the hormone melatonin; and

   d)whether mechanical parenting orders proposed by the father or the mother should be made.

Synopsis

1. Orders have been made as are recorded above for the reasons that follow.

Short factual narration

1. At the date of the trial of this proceeding the father was 54 years of age and the mother was 47 years of age. They married in 2005 and separated on a final basis in March 2009. Their son X was born in (omitted) 2006. The father and mother divorced in 2010.

2. The father and mother have been at odds for a sustained period of time over whether, and if so the extent to which X has autism spectrum disorder (“ASD”). The father has complained for a similarly sustained period about the mother giving X the hormone melatonin with a view to assisting X to relax prior to his sleeping at night. The father said in this case that certain pharmaceutical information has indicated that melatonin is “possibly unsafe” for use in children.[1]

   [1] Transcript of proceeding, 14 December 2016 at p.48.

3. One of the biggest issues between the father and mother was resolved in the dying moments (literally) of the trial of this proceeding when the mother announced that she had no issue stopping administering melatonin to X. Until the mother made that announcement, the whole subject of the administration of melatonin to X had been an all-pervading source of disputation between the mother and the father. Having regard to the mother’s position as announced in the final moments of this case, I make an order that requires the mother to cease administering melatonin to X. That has the effect of disposing of the issue recorded in paragraph 2(c) above.

4. The mother sought orders for equal shared parental responsibility. Ms S, the writer of the family report dated 21 September 2015, recommended equal shared parental responsibility. The father sought an order for sole parental responsibility.

Equal shared parental responsibility

1. As is apparent from the foregoing, I have made an order for equal shared parental responsibility. To my mind, that is in the best interests of X at this time. At the present time, an order for sole parental responsibility is not preferable and I am unwilling on the evidence to displace the presumption found in s.61DA of the Family Law Act 1975 (Cth) (“the Act”) in favour of an order for equal shared parental responsibility. That said, in view of the matters that are recorded below, I have increased the time that the father is to spend with X.

2. It was common ground between the father and the mother, as indeed it was a proposition embraced by Ms S, that X is very much loved by both his parents. Each parent is deeply devoted to X. Each parent has something different to contribute to the upbringing of X, a matter to his manifold benefit.

3. X loves each of his parents. Ms S described X’s love for each of his parents as being unconditional.

4. There is no doubt in my mind that X will benefit from having both his parents involved in his upbringing and that X sees each of his parents as wanting to be and in fact being involved in his life.

5. If the narration stopped at that point, the resolution of this dispute would have been considerably easier than it was. One of the significant sticking points in the ongoing parenting of X relates to the parents’ attitude to whether X is autistic. The father says X is not. The mother has taken the view that X displays traits consistent with autism. The father has challenged the conclusion that X currently demonstrates any characteristics consistent with autism. The father has indicated that an array of social consequences follow from X being characterised as having autism.

6. It is not necessary for me to make any observations about the wisdom or otherwise of the competing views. They provide an historic explanation for certain attitudes that the father and mother have displayed towards one another and towards X. They are also relevant to the issue of equal shared parental responsibility. That is because equal shared parental responsibility has at its foundation the concept that parents must cooperate on major issues relevant to the upbringing of the child in order to promote the best interests of the child.

7. In her family report dated 21 September 2015, Ms S recommended that each parent share parental responsibilities towards X. When giving viva voce evidence during the trial of this proceeding, Ms S vacillated, recognising that effective equal shared parental responsibility was predicated upon cooperation and that the parents in this case had admitted that their relationship at present was significantly less than friendly. In particular, the father stated that cooperation was seriously problematic.

8. At first blush, the hostility between father and mother seemed to condemn any prospect of equal shared parental responsibility. However, when carefully analysed, the ongoing bitterness between the father and mother was grounded in two main things –

   a)first, the mother’s use of melatonin on X. In view of the mother’s concession recorded above, now recorded in my orders that she will not administer melatonin to X, it would seem that one basis of hostility has been eliminated; and

   b)second, the ongoing antagonism between the mother and the father relating to an event in which X was allegedly sexually assaulted.

9. The father cross-examined the mother on the issue. The mother had sworn to aspects of the matter in several of the affidavits filed in this proceeding. The mother gave her evidence in court honestly and in a frank and forthright manner. It was apparent that her narration of events in the witness box caused her a good deal of pain as she was in tears while telling her version of events and the mother spoke of the damage to her relationship with her then-partner when she challenged him on the matter.

10. The father was alarmed at the information he received about events in July 2013 that X had been interfered with. He gave evidence that he challenged the mother on the subject. That led to an altercation that in turn led to an intervention order being made against the mother.[2]

    [2] Affidavit of Mr Julius sworn 11 November 2014 at Annexure “J09”.

11. The father questioned the mother about the alleged incident.

12. In must be kept in mind that the trial of this proceeding was not a criminal investigation during which a search was made for the perpetrator of the alleged assault. Nor was it an investigation for details into the alleged assault. The father pursued questioning about the alleged assault with a view to establishing that the mother’s then-partner committed the assault and that therefore the father should have sole parental responsibility on the basis that the risk to the child was too high if the child had time with the mother and her partner.

13. The material was equivocal on the point but it appears that the mother remarried although the identity of her new husband was not given.

14. In essence, the father contended that X was interfered with and that the mother’s then-partner did the interfering. According to the father, he reached that conclusion based on a recital of events given to the father by X. Shortly after the event, the father confronted the mother about the incident. She denied its occurrence. A verbal altercation ensued that led to the mother punching the father. He laid charges that the mother did not contest.

15. Pausing there, in the face of the scenario of the mother’s conviction for violence based on allegations of sexual interference, the father’s position in seeking an order that he have sole parental responsibility was reasonable. To that was to be added the mother’s administration of the hormone melatonin.

16. Determining whether to make an order for sole parental responsibility or an order for equal shared parental responsibility focused on the best interests of the child. The apparently objective evidence of Ms S did not categorically state the position and her equivocation made the task all the more difficult. On the one hand, in her family report she advocated for equal shared parental responsibility. In her evidence given by telephone Ms S eventually told me that she left the decision to me. Every now and then in the family law jurisdiction, psychologists with specialist expertise in family consultancy encounter difficulty in making recommendations on the issue of whether an order for sole parental responsibility is to be preferred to an order for equal shared parental responsibility. This was such a case.

17. Several factors in favour of the father having sole parental responsibility presented themselves. They included the following –

    a)for the whole of X’s life the father has been deeply devoted to promoting the welfare and development of X;

    b)the father has been very vocal in his condemnation of the administration of melatonin to X for the reason that melatonin’s long-term consequences were likely to significantly and adversely affect X’s health;

    c)Ms S’s report on the interaction between X and his father was extremely favourable;

    d)the father adopted a sensible, common sense and pragmatic approach to every-day issues that arose in relation to the parenting of X. For example, rather than administering a hormone to assist X to fall asleep at night, the father took X for a run thereby advancing X’s fitness while promoting his desire for sleep; and

    e)the father is, to use the words of Ms S in her family report, “flexibly available to parent”.[3]

    [3] Family report prepared by Ms S dated 21 September 2015, p.5 at [7].

18. Certain factors indicated that an order for sole parental responsibility in favour of the father may not be in the best interests of X. Among them were the following –

    a)the father lives with his own parents;

    b)the father currently receives a disability pension and, while he is presently retraining, his funds available for discretionary expenditure in respect of X’s lifestyle are likely to be limited; and

    c)the father has no contact with his children from an earlier relationship.

19. The mother did not seek an order for sole parental responsibility. She was content with an order for equal shared parental responsibility. The father opposed an order for equal shared parental responsibility, stating to Ms S that even if X was to live with the mother, the father “would need to distance himself from the current dynamic and not have anything to do with X”.[4]

    [4] Family report prepared by Ms S dated 21 September 2015, p.9 at [19].

20. That rather dramatic statement to Ms S seemed to me to miss the point about the purpose of an order for equal shared parental responsibility. Instead, it appeared to place the interests of the father, rather than those of the child, at the forefront. Naturally the paramount consideration is the best interests of X. Whatever might be the consequence to a parent in the making of an order that gives effect to that arrangement is secondary.

21. Let me now address issues relevant to the mother.

22. According to the affidavit material filed in this proceeding, after the mother and father divorced the mother had several domestic relationships. X currently lives with the mother along with the mother’s children, both teenagers. The mother works in (employment omitted) in the (omitted) at the (employer omitted). She currently works a nine-day fortnight during the school year.

23. Aside from the alleged assault mentioned above, the father and mother have for an extended period of time been in serious disagreement about the mother’s attitude to her construction of X’s personality. In short, the mother is of the view that X is autistic. The father rejects any such conclusion. It is fair to say that the mother in her approach to X’s parenting regards X as being autistic whereas the father does not. Ms S addressed that tension by stating that the father fixated on denying X’s autism. According to Ms S, in the mother’s view the father’s fixation on the denial of X’s autism detracted from the father’s capacity to identify and accept X’s character strengths and vulnerabilities.

24. A stalemate has emerged in that neither parent trusts the parenting skills of the other. The mother’s attitude, as reported by Ms S, is that no good reason exists to warrant any change.

25. The mother told Ms S that as X’s mother, she understood X, she knew his needs, she could read him in terms of his face and body language and that she could “redirect him”.[5] Whether true in fact or not, it remained the case that the mother raised and continues to raise X on the basis that X is autistic. It could not be said that a particularly persuasive body of medical evidence supports the conclusion that X is indisputably autistic and if so to what extent. To my mind it is likely that the mother has reached her own view that X is autistic, no doubt informed to a greater or lesser degree by the environment in which she works as an (occupation omitted) in the (employer omitted). The fact that she administered the hormone melatonin for as long as she did caused me to question why she did that when the alternative to overcoming X’s poor sleep patterns was easily achieved by exercise. I found it peculiar that the mother had not explored that. I asked whether she administered the melatonin in order to induce X’s sleep with a view to attaining her own convenience. She denied that proposition. Yet in the last moments of the case the mother volunteered to stop administering the hormone melatonin. If she had previously administered the hormone to X for legitimate medical reasons, she very quickly abandoned the need to do so when she volunteered to stop using it. That indicated to me that her answer to me may have been false when she said she did not use melatonin on X for her own convenience. I was suspicious about her evidence on the point.

    [5] Family report prepared by Ms S dated 21 September 2015, p.10 at [22].

26. Next, the mother’s evidence about the alleged assault on X caused me concern. She said in evidence that she questioned her partner about the incident, received his response and then did not pursue the matter further. As events transpired, the relevant government department did not pursue the assault allegations. However, the mother’s version of events was peculiar, to my mind.

27. The father put to the mother that X revealed to the father that the mother’s then-partner had chased X around the house attempting to touch X’s penis. The mother’s response was this –

    I understand that there were allegations made. I emphatically deny that there could be any truth to them.[6]

    [6] Transcript of proceeding, 14 December 2016 at p.23.

28. The mother continued in her answers to the father’s questions by stating that on 13 July 2013, she was with X for the whole day while she moved house, not leaving him in the care of anyone else for the entire day. She said three weeks later she received a telephone call from the Department of Health and Human Services (“DHHS”) informing her of the allegations about an alleged sexual assault on X. The mother said a representative of DHHS visited her the following day. She said that even after that meeting with DHHS she did not get to the bottom of the matter, that she was “still puzzled by it” and that X was reluctant to talk about.[7]

    [7] Transcript of proceeding, 14 December 2016 at p.24.

29. It seemed X did in fact talk about it as the mother gave an account of what X said. That account was confusing. I found the version given by the mother unreliable. Her evidence was as follows –

    HIS HONOUR: Well, as you know, if there’s suggestions of abuse of any description ‑ ‑ ‑?‑‑‑Yes.

    ‑ ‑ ‑ in these cases, it’s very relevant to my decision?‑‑‑I took that very seriously.  Yes.

    Well, likewise, I have to?‑‑‑Yes. Of course. 

    So I need to get to the bottom of this if you don’t mind?‑‑‑Yes.

    
    

    Of course. 

    What information did you get after the inquiries that you pursued?‑‑‑Like I said, at the time very little information.

    
    

    X could not clearly say what the allegation was. He had a vague description of running up the stairs and having his pants pulled down.

    By whom?‑‑‑By my partner [A], my partner at the time.

    
    

    No, he didn’t even say that. He never mentioned [A] to me.

    
    

    He never – he never made any reference to who was doing that. And it was more because I was questioning him and saying, “Now, child protection have told me this.” So ‑ ‑ ‑

    But the mere fact that someone did it must have put you on alert?‑‑‑Absolutely.

    And no doubt as a protective person, that made you dig quite deep as to what happened and who did it?‑‑‑Yes, your Honour. 

    What did you dig up?‑‑‑Well, it wasn’t until – at the time nothing. At the time I was not even sure that it had occurred, because X was so unable to articulate clearly about it. Nothing at the time. And months later, after the DHS had finished their investigation and couldn’t corroborate or couldn’t come up with any actual evidence or actual substantiation, the closest thing I could get to was that X and a friend of his from school at the time talked about other children at the school, one boy in particular, who was bullying them and threatening to pull down their pants, not actually doing it – I did ask them.

    …

    Did you take it up with X?‑‑‑Yes, yes. And that’s what I’m saying, he was unable to articulate ‑ ‑ ‑

    Is – are his – well, his skills are such that you could have a discussion about these sorts of things, I take it, or am I wrong about that?‑‑‑Well, yes. That’s interesting. He’s very articulate on particular subjects, but when it comes to emotional subjects he tends to clam up quite a lot and is much less articulate. And, like I said ‑ ‑ ‑

    Well, okay. But insofar as your questioning didn’t invite him to go into his emotional state and instead turn to simply the fact of something happening, did you pursue that with him?‑‑‑That’s – yes. Yes, of course I did. 

    So he – it’s not for me interrogate here, but I do need to know about this?‑‑‑Yes, I understand. 

    You got to the point where you were satisfied by his answers that someone had pulled his pants down;  is that right?‑‑‑No.

    I see?‑‑‑I don’t believe it even happened.

    To this day you don’t believe it happened?‑‑‑I don’t believe it even happened.[8]

    [8] Transcript of proceeding, 14 December 2016 at pp.24-26.

1. The mother then concluded that the father concocted the incident as he had done something similar with his former wife by allegedly concocting an incident.

2. Initially, it troubled me enormously that the mother exhibited something of a cavalier approach towards what seemed to be a very serious allegation that her son had been interfered with. Exercising the protective jurisdiction of this court, I was determined to get to the bottom of the allegation, not only as it bore upon the general welfare of X, but because it bore upon the mother’s attitude to parenting. In the upshot, some conclusions can be drawn from the evidence (such as it was) in relation to the alleged assault allegation –

   a)first, the evidence was imprecise about how the allegation arose in the first place. If X raised the matter to either his father or to is mother, the details were scant indeed;

   b)second, the evidence was equally scant about how DHHS became involved; and

   c)third, the precise details of the alleged assault were similarly imprecise as to date, circumstances, who was the perpetrator and what he or she actually did. This was not a criminal investigation during which allegations were tested against an evidentiary standard of beyond reasonable doubt. But even applying a civil standard of proof on the balance of probabilities, the identity of the perpetrator was imprecise as was the evidence of what he or she actually did.

3. The fact that DHHS, while once involved, took the matter no further was relevant. That said, I recognise that DHHS may have closed its file because it, for its own statutory reasons, may not have been satisfied that its jurisdiction was properly maintainable.

4. Certain peripheral matters have gone unanswered. They included –

   a)whether the father raised the allegation in the way the mother asserted, that is to say, in the same manner as he did with his former wife;

   b)why the mother exhibited, to my way of thinking at least, such a cavalier attitude towards the investigation of the allegation and an apparent reluctance to recognise or to properly investigate the potential that her then-partner may have been fully immersed in the controversy; and

   c)whether the event could have had a wholly innocent character involving some friendly horseplay with no sexual overtones about it at all.

5. All three of those matters set out immediately above may have been relevant to a criminal investigation. But this was not a criminal investigation. This case concerned, first and foremost, the best interests of X in his ongoing parenting. As a result, those three matters were less relevant than X’s best interests.

6. Nevertheless, in all the circumstances I was not persuaded that the evidence went so far as to show that in July 2013 X was in fact sexually assaulted or that the mother knew of any such assault in such a manner as to indicate that the mother was unfit to share in equal parenting responsibility of X.

Rebutting the presumption

1. As has been recorded above, if the presumption of equal shared parental responsibility is rebutted, I am empowered to make an order for sole parental responsibility. The father urged me to proceed down that path. This case concluded in circumstances where –

   a)the mother agreed and I have since ordered her to stop administering melatonin to X; and

   b)I was not persuaded that the sexual assault allegations were valid.

2. The question was whether the presumption of equal shared parental responsibility was rebutted. In my view it was not. I am not willing to alter the arrangements that X currently enjoys in relation to equal shared parental responsibility.

3. However, I refuse to accede to the mother’s request that I confer upon her sole authority to make decisions about X’s schooling and medical treatment.

4. So far as X’s schooling is concerned, he is a happy child who seems to be progressing well at school. In all the circumstances, there is no reason to alter that arrangement.

5. X’s medical needs should not be determined by the mother alone. In view of her willingness to continue to administer melatonin to X for a sustained period, notwithstanding the protests of the father who pointed out at least the risks (whether proven or otherwise) of the use of that hormone, followed by her seemingly immediate agreement to stop administering melatonin, I have little confidence that the mother is alive to the subtleties of X’s medical needs. I refuse to remove the father from critical decision-making in or concerning X’s medical requirements.

6. It will be readily apparent from the foregoing that the arrangements I have in mind for X are short-term solutions only. At this precise point in time, it seems to me that any dramatic alteration of the seemingly workable arrangements for X’s accommodation should not be undertaken. Currently, he lives with the mother and others in perfectly satisfactory circumstances. If X were at risk of molestation while in those arrangements, I would not hesitate to alter arrangements by ordering X to live with the father. But as has been set out above, I am not persuaded that risks currently exist that X will be or might be sexually assaulted in his home environment.

7. Equally, as I have recorded above, in my view the mother’s approach to parenting is cavalier. In my view it requires review. The orders I have made in this case are short-term, intended to operate for no longer than 12 months. I have done that because –

   a)it is necessary to see how X adjusts to the eradication of melatonin from his daily functioning; and

   b)it seems to me to be wise to see whether the mother’s parenting skills improve.

8. It follows that I have held over the further consideration of this proceeding for 12 months. On the review date I will assess whether sole parental responsibility should be given to the father or whether equal shared parental responsibility should remain.

9. In making the order for equal shared parental responsibility, I have taken into account the fact that the father has informed Ms S and has stated in affidavit form that he is unable to meaningfully co-operate in the joint parenting of X. That attitude must be reversed. Self-evidently, such an attitude is guaranteed to ensure that meaningful joint parenting fails. I require the mother and father to adopt a more mature approach towards cooperative parenting with a view to advancing the interests of X, rather than giving voice to their own personal grievances towards one another.

10. Section 65DAA(1) of the Act requires that, where a parenting order has been made for equal shared parental responsibility, the Court is to consider the reasonable practicality of the child spending equal time with each parent and whether it would be in the child’s best interests.

11. The Full Court in Goode v Goode[9] held that even where the Court does not make an order that the parents have equal shared parental responsibility for a child, the Court must still consider whether it is in the child’s best interests that the child spend equal time or substantial and significant time with each parent. The Court must also consider whether spending substantial and significant time is reasonably practicable. Section 65DAA(5) of the Act sets out what the Court must have regard to in considering what is reasonably practicable. I have considered these issues when determining what orders to make in this matter.

    [9] (2006) 36 Fam LR 422.

12. As is apparent from the foregoing, I have increased the time that the father spends with X. The father has already been spending significant and substantial time with X and I have increased this to closer to an equal time, shared care arrangement of six nights every fortnight. Ms S impressed upon me that the time the father shares with X is beneficial. The father currently has the capacity to spend more time with X. Previously, the father has served as a classroom volunteer, assisting X in his educational needs. That is to be commended.

13. In making the orders I have, I have also considered s.60CC(2) of the Act being the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.

14. When determining a parenting case a judge in my shoes has to give consideration to an array of matters canvassed in s.60CC(3) of the Act. I have already considered many of these matters in these reasons thus far when determining what orders to make. I make some additional points and observations here.

15. X is nearly 11 years old. In her family report, Ms S noted that “X sought to continue to live in each parent’s home on a regular basis” and that X “did not present as having been unduly influenced by either parent to share views that aligned with their preferred outcomes”.[10] It is clear from the evidence that X has a loving and close relationship with each of his parents. The current living arrangements have been in place since April 2010. X is happy and well cared for. I am satisfied that both parents have the capacity to support X’s emotional and intellectual needs. As such, I see no need to alter the existing living arrangements in any significant way at this time. The change I have made to the existing orders is unlikely to have any significant effect on X’s wellbeing or relationship with either parent.

    [10] Family report prepared by Ms S dated 21 September 2015, p.13 at [31].

16. Further, the orders I have made will not present any kind of increased practicable difficulty or expense to either parent, nor will they substantially affect X’s right to maintain his relationships with his parents or any other extended family members. At all events, the orders are interim only and will be reviewed in 12 months’ time.

17. For all of the reasons set out herein, I made the orders recorded above.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 9 March 2017