Litchfield and Beck (No.3)

Case •

[2010] FMCAfam 1467

•

22 December 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LITCHFIELD & BECK (No.3) [2010] FMCAfam 1467
FAMILY LAW – Children – interim parenting orders – variation of orders – what school the child is to attend in 2011 – whether the father’s time with the child should be supervised at a contact centre – where the father was ordered to provide a psychiatric report as to his mental state to the Court – where no psychiatric report provided – unacceptable risk.
Family Law Act 1975, ss.60CA, 60CC, 61DA, 61DB
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422
Litchfield & Beck [2010] FMCAfam 969
Litchfield & Beck (No.2) [2010] FMCAfam 1139
Applicant: MS LITCHFIELD
Respondent: MR BECK
File Number: SYC 4751 of 2010
Judgment of: Scarlett FM
Hearing date: 20 December 2010
Date of Last Submission: 20 December 2010
Delivered at: Sydney
Delivered on: 22 December 2010

REPRESENTATION

Solicitor for the Applicant: Hamish Cumming Family Lawyers
The Respondent: In person
Solicitors for the Independent Children’s Lawyer: Stephen W. Bell & Associates

ORDERS

  1. That all previous parenting orders are discharged.

  2. That the child [X] born [in] 2006 live with the mother.

  3. That the child [X] attend the [C] School with effect from the commencement of the First Term in 2011.

  4. That the father is to spend time with the child [X] at the [omitted] Children’s Contact Service under the supervision of that service.

IT IS NOTED that publication of this judgment under the pseudonym Litchfield & Beck (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 4751 of 2010

MS LITCHFIELD

Applicant

And

MR BECK

Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application to vary earlier parenting orders and, in particular, to make an order about which school the child [X] is to attend at the commencement of the first school term in 2011. The father has a different school in mind.

  2. The Independent Children’s Lawyer has raised concerns about the father’s failure to comply with the earlier order made on 10th august 2010 that he attend upon a psychiatrist and provide a psychiatric assessment to the Court within a reasonable time.

Orders Sought 

  1. The applicant mother has filed an amended application seeking interim orders that:

    a)The child [X] should attend the [C] School in the year 2011;

    b)The parties should make a good faith attempt to consult each other and endeavour to reach agreement about major long term decisions in relation to the education, health and religion of the child;

    c)If the parties fail to reach agreement in relation to major long-term issues, then the mother would have sole parental responsibility for making those decisions and keep the father informed of the decisions made;

    d)That the child should live with the mother; and

    e)The father’s time with the child should be supervised at the [omitted] Children’s Contact Service.

  2. The father has not filed an amended response seeking any orders. The Independent Children’s Lawyer does not seek any other orders.

Areas of Agreement

  1. There seems to be no issue that the child should continue to live with the mother.

Issues in Dispute

  1. The mother and the Independent Children’s Lawyer have expressed concerns about the father’s mental state and claim that he is obsessed by the belief that the child has been physically abused by the mother and her partner. This has led to the father taking the child to the police to make complaints which have not been substantiated.

Background

  1. This matter has been the subject of a number of interim applications during the five months that it has been before the Court. Interim Orders were made on 10th August 2010 that the child should live with the mother and spend time with the father on weekends. The father’s time with the child was to be supervised by one or other of the parental grandparents or by a friend of the father’s, Mr H. It was a condition of the order that the father should attend upon a psychiatrist and provide a psychiatric assessment to the Court within a reasonable time.

  2. No psychiatric assessment has been forthcoming.

  3. There is an Apprehended Violence Order in force against the father. The protected persons are the mother and the child. The order is in force for a period of 12 months from 20th August 2010.

  4. On 1st December 2010 the father was charged with a breach of the Apprehended Violence Order. He was held in custody overnight and appeared in court the next morning, where he entered a plea of Not Guilty. The matter is listed for hearing on 2nd March 2011. 

Evidence

  1. The mother relied on her affidavit affirmed on 29th November 2010. She tendered documents produced on subpoena from:

    a)The father’s employer, [omitted];

    b)New South Wales Police;

    c)[omitted] Medical Centre; and

    d)The child’s pre-school.

  2. The mother’s solicitor, Ms Kensell, also tendered a chronology.

  3. The father did not file or tender any documents.

  4. The Independent Children’s Lawyer, Mr Bell, tendered a copy of a letter to the father dated 16 December 2010, giving useful advice about the conduct of interim hearings in this Court and enclosing two blank forms of affidavit for the father to use.

  5. It is the mother’s evidence that the father has taken the child to various doctors, hospitals and the police, alleging that she has been assaulted:

    a)On 11th August 2010 he took the child to the [omitted] Medical Centre for examination;

    b)On 21st August 2010 he took the child to the [omitted] Police Station, alleging that she had been assaulted by the mother’s partner;[1]

    c)On 23rd August 2010 he took the child to the [omitted] Medical Centre for examination;

    d)Later that day he took the child to the [omitted] Hospital for examination;[2]

    e)On 28th August 2010 the Police attended the father’s parents’ home, where the father alleged that the mother’s partner had assaulted the child;[3]

    f)On 4th September 2010 the Police again attended the father’s parents’ home, where the father again alleged that the mother’s partner had assaulted the child;[4]

    g)On 10th September 2010 the father attended the [omitted] Police Station and alleged that the mother’s partner had assaulted the child by smacking her twice on the arm;[5]

    h)On 15th September 2010 the father attended the [omitted] Police Station and alleged that the mother’s partner had assaulted the child;[6]

    i)The father attended the mother’s place of employment, [omitted], on 23rd September 2010 to complain about the mother;

    j)Between 18th and 29th September 2010 the father contacted [employer omitted] and made complaints about the mother, her partner and her partner’s father. The complaints included an allegation that the child had been assaulted;[7] and

    k)On 19th October 2010 the Board of Directors of [employer omitted] suspended the father from using the club for a period of two years.[8]

    [1] Affidavit of Ms Litchfield 29.11.2010 at paragraph [8]

    [2] Ibid at [11]

    [3] Ibid at [14]

    [4] Ibid at [17]

    [5] Ibid at [19]

    [6] Ibid at [20]

    [7] Ibid at [24]-[28]

    [8] Ibid at [30]

  6. The mother has raised concerns about the role of the paternal grandparents as supervisors of the father’s time with the child. Whilst she concedes that “they love her dearly”[9], the mother expresses the opinion that the grandparents do not understand the nature of the supervision required and that the father has not been informing them of any changes to the arrangements.[10]

    [9] Ibid at [33]

    [10] Ibid at [35] & [36]

  7. The mother has also deposed that she wishes [X] to attend the [C] School when she starts school in 2011. I note that the Order sought in the Amended Application refers to the “[C] School”[11], but the text of the mother’s affidavit refers to the “[C] School” and the mother has annexed to her affidavit a letter dated November 23 2010 confirming that [X] is enrolled for Kindergarten 2011 at [C] School.[12]

    [11] Emphasis added

    [12] Affidavit of Ms Litchfield 29.11.2010 Annexure “N”

  8. The mother gives her reasons as:

    40.    It is my proposal that [X] attends [C] School. The school is located two blocks from my unit and takes less than 5 minutes to drive. The school is a 10 minute drive from my work.

    41.    In addition to being close to my work and home, one of the reasons I would like [X] to attend [C] is she will know most of the other children in her class. I have been involved in a mother’s group since [X]’s birth and two of the children from this group, [names omitted] will be attending [C]. There are also here 21 children from [X]’s pre-school who are attending [C] School next year and of these, are two of [X]’s best friends, [name omitted].


    I also have a good relationship with the parents of the children attending and have available a strong support network at the school.[13]

    [13] Affidavit of Ms Litchfield 29.11.2010 at [40]-[41]

  9. The mother deposed that the father had contacted her solicitor to advise that he did not consent to the child attending the [C] School. He wanted her to attend the [D] School and “if she does not attend [D] School [X] will not be attending any school”.[14]

    [14] Ibid at [45]

  10. The mother deposed that she would like the child to have some notice of which school she is to attend “so that she can prepare for her first year of schooling rather than it being a further source of stress”.[15]

    [15] Ibid at [51]

  11. The father did not tender any evidence.

Submissions 

  1. The Independent Children’s Lawyer, Mr Bell, submitted that the subpoena served on the Department of Human Services (DOCS) showed that there was no evidence of any abuse to the child. All that was produced were the notifications by the father. The doctors’ records subpoenaed have raised no issues of abuse. The child has been taken to the police station by the father on more than one occasion and the issue of bruises on the child have been reported to the police and notified to the Department of Human Services. They have not taken any action. The father has also raised the issue with the child’s pre-school.

  2. The ICL[16] raised a concern about the father’s mental health. He submitted that the father was more concerned about “getting at” the mother than the child’s welfare. It also transpired that the father “propositioned” the Family Consultant when the parties attended the Child Dispute Conference ordered by the Court. When the ICL raised that matter with the father, he replied “I speak my mind”.

    [16] Independent Children’s Lawyer

  3. Mr Bell also noted that the father was continually ringing the mother’s employer making allegations of a sexual nature.

  4. The ICL also noted that the father had been referred to a psychiatrist because of stress. When he inquired, Mr Bell was told that the father had rung the psychiatrist and cancelled the appointment.

  5. Mr Bell also referred to the evidence on subpoena from the child’s pre-school, detailing the father’s inappropriate behaviour there. He submitted that this evidence should be given considerable weight, as it came independently from the pre-school and not from the mother.

  6. It is the ICL’s view that the father has no insight into his behaviour and lacks control. His parents have been present at times of his inappropriate behaviour but do not seem to be able to control him.

  7. The ICL submitted that the case for the father’s time with the child to be supervised at a contact centre is very strong. There is presently an unacceptable risk to the child because of the father’s sexualised behaviour and his constant allegations that the child is being abused.

  8. Mr Bell also supported the mother’s application for an order permitting the child to attend the [C] School over the father’s choice, [D]. He noted that most of the child’s friends would be attending [C] School and it is better for the child to feel relaxed and happy when she commences attending school.

  9. Ms Kensell, for the mother, submitted that there were serious concerns about the father’s mental health. He has a history of mental illness and obsessive behaviour. This obsessive behaviour relates to:

    a)The mother’s sexual relationship with her current partner; and

    b)The father’s fixation that the child has been subject to abuse by the mother and her partner.  

  10. The father’s obsessive behaviour has been shown by the father’s numerous text messages to the mother in the past.

  11. The father’s behaviour has had a direct impact on the child. There have been five notifications to the Police, four of which have involved the child being interviewed. All the claims have been investigated and found to be unsubstantiated.

  12. The mother has set out her reasons why she believes that the child should attend the [C] School. The father has put forward his own proposal but has not put any material before the Court to support it.

  13. In summary, it is submitted for the mother that the existing orders are unsustainable and that shared care will be unsuccessful. The father’s time with the child should take place at a supervised contact centre for those reasons.

  14. The father made an oral submission to the Court. He said that he would not speak about the bruising issue at that stage. He said that the mother had decided to leave in October 2008, and between then and May 2010 she had taken the view that his parents were capable of looking after [X].

  15. He said that the Court was allowing the mother to dictate the terms as to when he should see the child. He further said that he was prepared to go to a contact centre because he wanted his daughter to have a normal childhood. He asked for reasonable access to his daughter.

  16. As to the school, the father said he did not believe it was fair to change the child’s enrolment at school. The mother and he had discussed the matter of the child’s school before they split up.

  17. On the subject of his attending a psychiatrist, the father told the Court that the particular psychiatrist was very busy but he had an appointment in February 2011.

Relevant Considerations  

  1. In deciding whether to make a particular parenting order in relation to a child, it is always the case that the Court must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA). The Court determines what is in the child’s best interests by having regard to the primary considerations set out in s.60CC(2) of the Act and the additional considerations set out in s.60CC(3). The Court must also considers the matters in s.60CC(4) and, where the child’s parents have separated, events that have occurred and circumstances that have existed since the separation occurred (s.60CC(4A)).

  2. I have done so in this case, and will set out the reasons in more detail.

  3. The Court must also consider the presumption in s.61DA of the Act that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility, and consider whether that presumption should apply in the particular circumstances (see Goode & Goode[17]). I did not consider it appropriate to apply the presumption when dealing with this matter on two earlier occasions[18] and, on the evidence currently before the Court, maintain that view. It would not be appropriate in the circumstances to apply the presumption when making these interim orders (s.61DA(3)). 

    [17] [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422

    [18] Litchfield & Beck [2010] FMCAfam 969; Litchfield & Beck (No.2) [2010] FMCAfam 1139

  4. In any event, when making a final parenting order in relation to the child, the Court must disregard the allocation of parental responsibility made in the interim order (s.61DB).

Conclusions

  1. This is an interim hearing, and none of the evidence has been tested by cross-examination. However, the father has not brought any evidence by way of affidavit in reply to the evidence of the mother. He has not denied the matters put in submission by the Independent Children’s Lawyer or the mother’s solicitor.

  2. It follows that the Court should give weight to this evidence.

  3. The father’s mental state is an important issue, as his behaviour impacts on the child. The Court must consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (see s.60CC(2)(b)).

  4. The father’s obsessive behaviour is liable to cause psychological harm to the child, especially as there have been several unsubstantiated claims of abuse that have led to the child being taken to the [omitted] Medical Centre, the [omitted] Hospital, and the Police. It is not in any way a criticism of the police to note that the child has now been interviewed four times about these allegations of assault brought by the father; the police have duty to investigate allegations that a crime has been committed, and there is nothing to show that the way in which they carried out their duty was in any way inappropriate.

  5. Nevertheless, for a child not yet five years old to be subjected to repeated interviews and medical examinations is obviously very stressful. The mother deposed in her affidavit that when the child was returned to her by the police on 23rd August, after having been medically examined at the [omitted] Hospital as a result of a complaint by the father, she “sobbed inconsolably” when the mother started peeling off one of the four sensory pad stickers on the child’s body.[19]

    [19] Affidavit of Ms Litchfield 29.22.2010 at [11]

  6. Neither the Police nor the Department of Human Services have substantiated any of the father’s claims.

  7. I am not satisfied that the father’s parents are able to moderate his behaviour when the child is with him. There is no explanation as to what their attitude has been to this behaviour by the father. The arrangements for the father to spend time with the child are no longer appropriate, in my view, as they do not appear to be in her best interests.

  8. I am mindful that the Court must consider the benefit to the child of having a meaningful relationship with her father (see s.60CC(2)(a)), but this meaningful relationship cannot take place in circumstances where there is an unacceptable risk of psychological harm to the child. For this reason, the child’s time with the father must be supervised at a contact centre, for her protection.

  9. There are serious question marks about the father’s capacity to provide for the child’s needs, including emotional and intellectual needs (s.60CC(3)(f)) and the attitude to the child, and to the responsibilities of parenthood, demonstrated by the father (s.60CC(3)(i)).

  10. Until the father gains some insight into the fact that his mental state is a major cause of concern in his relationship with his young daughter, the Court will be obliged to make orders severely restricting his time with her, for her protection.

  11. The father was legally represented when the order was made on 1oth August 2010 that he should attend upon a psychiatrist and provide a psychiatric assessment to the Court. He cannot be said not to have understood his obligation in that regard. He is no longer represented, for whatever reason, but he should have complied with the order. The reasons he has given for not doing so are not so much unconvincing as non-existent.

  12. As to the school that the child attends in 2011, the mother has given reasons as to why she considers that [C] School is an appropriate choice for [X]. It is a big step in a child’s life to go from pre-school to school. For [X] to go to school in company with other children who are friends of hers from pre-school must surely assist her in making the transition to a new educational environment.

  13. The father’s reasons for the child going to [D], which may well be a perfectly good public school, were given in a submission to the Court as that it is “not fair” for the mother to change the chosen school because they had discussed the issue before they separated. The situation has changed since the parties separated, if there was such a previous agreement, and much if it has changed because of the father’s behaviour since separation (see s.60CC(4A)). For instance, there is now family violence order in place.

  1. In any event, the Court must decide this matter by looking at what is in the child’s best interests. It is clearly in her best interests to start school in the presence of her friends with as little stress as possible. [X] will commence her education at [C] School at the commencement of the first school term in 2011.

  2. The father is not due to see the psychiatrist until February 2011. He will need to provide the Court with the psychiatric assessment ordered on 10th August 2010 before this matter can progress any further. 

  3. The application will be adjourned for further mention in March 2011, at which time consideration will be given to giving directions for a final hearing.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date:  18 January 2011


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Goode & Goode [2006] FamCA 1346
Litchfield and Beck [2010] FMCAfam 969