LOLLEY & LOLLEY
[2012] FamCA 380
FAMILY COURT OF AUSTRALIA
| LOLLEY & LOLLEY | [2012] FamCA 380 |
| FAMILY LAW – CHILDREN – parental responsibility – with whom a child lives – with whom a child spends time and communicates – subject child is five years of age - where prior interim orders provided for the curtailment of and the imposition of supervision on the child’s time with the mother – where the imposition of supervision was supported by expert evidence – the child has a meaningful relationship with the father from which he derives considerable benefit – where the child’s relationship with the mother is important but the relationship is qualitatively inferior to the relationship he enjoys with the father – where the child will derive a benefit from retaining his relationship with the mother – child is too young to have any weight attributed to his views – where the mother asserts the child is affected by some form of undiagnosed organic condition which impairs the child’s socialisation and explains the child’s violent behaviour – expert evidence supports finding the child’s behavioural problems are attributable to his insecure attachment to the mother and not some underlying organic condition – finding mother’s impaired parenting capacity was the primary cause of the child’s insecure attachment to her – danger of emotional harm posed by the mother to the child has not been ameliorated by the imposition of supervision – no order for child to spend time with the mother until their relationship can be repaired under the tutelage and supervision of a therapist - presumption of equal shared parental responsibility not applied – interim orders allocating sole parental responsibility to father and for child to live with father |
| Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE |
| Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 |
| APPLICANT: | Mr Lolley |
| RESPONDENT: | Ms Lolley |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 2985 | of | 2010 |
| DATE DELIVERED: | 24 May 2012 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Austin |
| HEARING DATE: | 30 April, 1, 2 & 3 May 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | Catherine Henry Partners |
| COUNSEL FOR THE RESPONDENT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | N/A |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O'Rourke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders, pending further order
All former parenting orders relating to the child J Lolley, born … October 2006, are discharged.
Subject to the father’s compliance with Orders 4 and 5 hereof:
(a) The father shall have sole parental responsibility for the child; and
(b) The child shall live with the father.
The Independent Children’s Lawyer shall:
(a)Forthwith engage a child psychiatrist with expertise in attachment theory, or some other professional approved by the single expert witness, (“the therapist”) to provide therapy to the child and the parties for the purpose of abating the child’s anxiety, assisting the child to develop more adaptive social behaviour, and re-establishing a harmonious relationship between the child and the mother; and
(b)Within 21 days hereof, notify the parties of:
(i)The name, address and contact details of the therapist; and
(ii)The times and dates of the initial appointments for each of them and the child with the therapist.
The parties shall do all acts and things reasonably necessary to ensure the commencement and participation in therapy of them and the child, at the discretion of the therapist, for as long as is deemed necessary by the therapist.
For the purposes of implementing Orders 3 and 4 hereof:
(a)The Independent Children’s Lawyer shall provide to the therapist copies of:
(i)These orders and the reasons delivered by the Court for these orders;
(ii)The Family Report of the Family Consultant, dated 27 January 2011; and
(iii)The expert report of the single expert witness, dated 12 August 2011.
(b)The father shall procure any necessary medical referrals for himself and the child to the therapist and bear the cost of his participation in the therapy;
(c)The mother shall procure any necessary medical referral for herself to the therapist and bear the cost of her participation in the therapy;
(d)The parties shall bear the cost of the child’s participation in the therapy in equal shares;
(e)The parties shall waive confidentiality and irrevocably authorise the therapist in writing to:
(i)Consult with the Family Consultant and Independent Children’s Lawyer at their request; and
(ii)Make files, notes, reports, and documents available for inspection and/or production on subpoena.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates by telephone with the mother on the child’s birthday and each Wednesday between 4.30 pm and 5.00 pm, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father and the father shall ensure that the child is able to receive the mother’s calls on that number at that time.
The father shall authorise and request the principal of any school attended by the child to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the child.
The father shall notify the mother of any medical emergency, illness or injury suffered by the child whilst in his care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the mother about the condition and treatment of the child.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.
The parties shall forthwith enrol themselves to commence, and thereafter participate in and complete a post-separation parenting program, subject to the approval of that program by the Independent Children’s Lawyer.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Family Consultant shall furnish the Court with an updated Family Report pursuant to s 62G of the Family Law Act 1975 by Friday 22 March 2013.
In order to facilitate preparation of the updated Family Report:
(a)Each party must attend upon the Family Consultant for such interviews and observation sessions at such times and places nominated by the Family Consultant, but not prior to 31 January 2013;
(b)Each party must ensure the attendance of the child at such interviews and observation sessions at such times and places nominated by the Family Consultant, but not prior to 31 January 2013; and
(c)The Family Consultant is granted leave to inspect the Court file and all documents produced on subpoenae.
These proceedings are adjourned to 9.30 am on 17 April 2013 for further procedural orders.
Notation
(A)No orders are made prescribing the time to be spent by the child with the mother, which shall be determined by the father as an incident of his sole parental responsibility for the child, guided by the advice of the therapist.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lolley & Lolley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 2985 of 2010
| Mr Lolley |
Applicant
And
| Ms Lolley |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
The parties’ only child has presented an extraordinarily difficult parenting challenge to them. His behaviour has frequently been incorrigible. The parties each attempted to deal with it as sensitively and capably as they could but unfortunately they had remarkably different ideas about the cause of the child’s behaviour and the manner in which it ought to be addressed.
Despite the parties’ mutual and honest intention to achieve an outcome which promoted their child’s best interests they reached an impasse which they found insoluble. Consequently, it fell to the Court to decide the allocation of parental responsibility, with whom the child lived and the circumstances of the child’s interaction with the non-residential parent.
Background
J is the subject child in these proceedings. He was born in October 2006 and is now 5 years of age.
The parties adopted quite different parenting styles following his birth and the stress induced by prolonged tolerance of their philosophical differences of opinion ultimately led to the termination of their relationship in August 2010.[1]
[1] Father’s affidavit, par 32
The father perceived the mother to be an unduly anxious parent, unjustifiably concerned the child suffered from a disorder on the autism spectrum[2] and fussing over him unnecessarily.[3]
[2] Father’s affidavit, pars 20, 24, 30
[3] Father’s affidavit, pars 13-15, 17-18, 21, 26
Conversely, the mother perceived she was uniquely placed to quell the child’s unruly behaviour and attended to that role with skill and devotion,[4] but was sorely disappointed by the father’s devaluation of her efforts and disrespectful treatment of her.[5]
[4] Mother’s affidavit, pars 12-23, 25-29
[5] Mother’s affidavit, pars 65, 100, 108
The child’s defiant and aggressive behaviour was understandably a worry to them both.
Following separation the father remained living in regional city D and the mother and child returned to live in W, where the family had formerly lived.[6]
[6] Father’s affidavit, par 32
Both before and in the months following separation the mother took the child to a variety of medical assessments.[7] The mother’s perception of the father’s refusal or failure to implement recommendations for further medical investigation of the child made by a paediatrician in January 2011 is a fundamental feature of this litigation and precluded the parties’ capacity for consensus.[8]
[7] Mother’s affidavit, pars 39-41, 45, 99
[8] Mother’s affidavit, pars 49-50, 93-99, 114
The mother closely monitored the time spent by the child with the father following separation,[9] apparently because she was fearful the father would not return the child to her in the absence of any parenting orders.[10] The father was dissatisfied with the level of control exerted by the mother and commenced these proceedings before the Federal Magistrates Court in November 2010.[11]
[9] Father’s affidavit, par 34
[10] Single expert report, page 10
[11] Father’s affidavit, par 34
The matter was considered by the Court on 13 December 2010, at which time interim parenting orders were made with the consent of the parties.[12] The orders provided for the parties to have equal shared parental responsibility for the child and for the child to live with the mother and spend every weekend with the father. The parties agreed to exchange the child at T, a town situated between the residences of the parties.
[12] Father’s affidavit, par 34; Mother’s affidavit, par 6
The Court reconsidered the matter on 25 March 2011, following release of the Family Report. On that occasion further interim orders were made, again with the consent of the parties.[13] The child’s residence was reversed. The orders required the child to live with the father and spend time with the mother each Sunday.
[13] Father’s affidavit, par 35
The mother alleged she offered her consent to those orders under “extreme emotional duress and shock”.[14] Even though not challenged about it in cross-examination I consider such evidence inherently improbable and do not accept it. The Court is entitled to take that course, provided the rejection of the unchallenged evidence is sufficiently explained (see Kowalski v Mitsubishi Motors Australia Ltd [2011] FCAFC 159 at [126-129]; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 561, 586-589; Marriage of Scott (1994) FLC 92-457 at 80,728-80,731). In March 2011 the mother was legally represented and was accompanied to Court for support by her mother and aunt.[15] No corroborative evidence was adduced from the mother’s relatives of the duress to which she was allegedly subjected. In addition, the mother is intelligent, articulate and holds legal qualifications.[16] It unlikely she was overborne and acted involuntarily. Most probably the mother agreed to the orders, following advice she received from her solicitor, but then later regretted her decision to do so. It is trite to observe, but her subsequent regret does not equate to her earlier duress or coercion.
[14] Mother’s affidavit, pars 8-9
[15] Mother’s affidavit, pars 9-10
[16] Mother’s affidavit, pars 72, 125
The child has lived continuously with the father in D since the interim orders were made in March 2011, while the mother remains living in W.
The single expert met with the parties and child in July 2011 and compiled her report in August 2011. Shortly following the release of that report, further interim orders were made by the Court on 12 September 2011,[17] but this time the orders were not consensual. The orders provided for the curtailment of the time spent by the child with the mother and the imposition of supervision. In lieu of unsupervised time every Sunday, provision was made for the child to spend a minimum of two hours each fortnight with the mother supervised at the T Contact Centre (“the contact centre”). Such orders were generally consistent with the opinions expressed by both the single expert and Family Consultant.
[17] Father’s affidavit, par 36; Mother’s affidavit, par 11
The time spent by the child with the mother at the contact centre was fraught with difficulty. The father was summoned to the centre on two occasions in February 2012 to collect the child early as the visits with the mother had broken down.[18]
[18] Father’s affidavit, par 57; Father’s second affidavit, pars 9-11; Mother’s affidavit, par 62;
Following the second of those incidents the staff of the contact centre notified the parties in writing that they would no longer provide their supervisory services to the family.[19]
[19] Mother’s affidavit, pars 63, 75
Contemporaneously with the decision of the contact centre staff to withdraw services, the mother concluded the contact centre was an unsatisfactory venue for the child to spend time with her and notified the father of her intention to discontinue its use.[20] In fact, she formed the view that it was inappropriate for the time spent by the child with her to be supervised at all,[21] but the father rejected her requests for the child to spend unsupervised time with her.[22]
[20] Mother’s affidavit, pars 60-61, 63
[21] Mother’s affidavit, par 63
[22] Mother’s affidavit, pars 74-75, 86
The problems at the contact centre were shortly followed by problems at the child’s school. The child commenced school at the beginning of the 2012 academic year and, although only in kindergarten, was suspended for a week on 27 February 2012[23] and for another week on 5 March 2012.[24] He resumed school on 12 March 2012 and the problems have since largely abated.[25]
[23] Father’s second affidavit, par 8; Mother’s affidavit, par 114
[24] Father’s second affidavit, par 12; Mother’s affidavit, par 114
[25] Father’s second affidavit, pars 13-15
Presently the child spends no time with the mother because of, firstly, the withdrawal of services by the contact centre staff, secondly, the mother’s refusal to see the child under supervised conditions, and thirdly, the unwillingness of the father in the face of the single expert’s and Family Consultant’s recommendations to accede to the mother’s request for the child to spend unsupervised time with her.
The child and mother do however have communication by telephone pursuant to the interim orders made in March 2011.
Proposal and primary evidence of father
The father began the trial pressing the Court for the orders contained within his Case Outline document, which were at slight variance from the orders proposed in his Amended Initiating Application filed on 8 November 2011. The father’s proposal entailed:
a)The father having sole parental responsibility for the child (Order 2);
b)The child living with the father (Order 1);
c)The child not spending any time with the mother until she obtains a psychiatric report from a psychiatrist, nominated by the Independent Children’s Lawyer, stating that it is in the child’s best interests to spend unsupervised time with her (Orders 3(a), 3(b), 4), and thereafter the child spending unsupervised time with the mother each alternate weekend, for half of school holiday periods, and on other special occasions (Order 3(c)); and
d)The child’s communication with the mother by telephone (Order 6), but the father later changed his proposal for that to occur on only Wednesday afternoons instead of both Wednesday and Sunday mornings.
In support of his proposal the father relied upon:
a)His affidavit filed on 15 February 2012;
b)His affidavit filed on 13 April 2012;
c)The affidavit of Dr B filed on 7 March 2012; and
d)The affidavit of Ms N filed on 16 March 2012.
Proposal and primary evidence of mother
The mother was not legally represented and sought the Court’s permission for a friend to assist her in the presentation of her case in the capacity of a McKenzie friend (see McKenzie v McKenzie (1970) 3 All ER 1034). Leave was granted with the consent of the father and Independent Children’s Lawyer.
The mother pressed the Court for the orders set out in her Amended Response filed on 19 March 2012. Her proposal involved:
a)Allocation of equal shared parental responsibility for the child to the parties (Order 2), subject to the mother having “a final say” in relation to the school the child attends (Order 15);
b)The child to live with the mother (Order 1);
c)The child to spend time with the father, unless otherwise agreed, for two of every three weekends (Order 4), half of school holiday periods (Orders 5, 6, 8), and on other special occasions (Orders 7, 9, 10-14);
d)The child to communicate liberally with the parties by telephone (Orders 20-23);
e)Various other rights, mandatory obligations and restrictions of and upon the parties (Orders 17-19, 24, 26, 28); and
f)Liberty to restore the matter to the list on short notice in the event of breach of an order or “other parenting concern” (Order 29).
In support of her proposal the mother relied upon:
a)Her affidavit filed on 19 March 2012, described as her “trial affidavit”;
b)Her affidavit filed on 19 March 2012 comprising 3 paragraphs; and
c)The affidavit of Dr S, psychiatrist, filed on 19 March 2012.
Consistently with Rule 15.41 of the Family Law Rules 2004 (Cth), a procedural order was made on 20 October 2011 permitting the mother’s reliance upon the affidavit of Dr S in the belief that doctor was the mother’s treating psychiatrist.[26] However, it became apparent at trial that Dr S was not the mother’s treating psychiatrist.
[26] Order 8(b)
The mother arranged her referral to the psychiatrist through her general practitioner for the express purpose of obtaining an expert opinion to meet issues raised in the Family Report, which the mother found objectionable. In such circumstances Dr S was really relied upon as an adversarial expert witness. So much was admitted by the mother in her affidavit[27] and in cross-examination, and also by Dr S in her cross-examination. If that fact was known when the procedural orders were made in October 2011 the mother would not have been permitted to rely upon the evidence of Dr S, because doing so flagrantly infringes the purpose of the appointment of single expert witnesses under the Family Law Rules 2004 (Cth) in instances of such controversy. Nonetheless, in the absence of objection by either the father or Independent Children’s Lawyer, the mother’s reliance upon the affidavit of Dr S was permitted.
[27] Mother’s affidavit, pars 122-123
As it transpired, limited weight could ultimately be reposed in Dr S’s evidence, whose affidavit only served to adopt the contents of her report prepared on 18 June 2011. Dr S saw the mother on only one occasion for 90 minutes. In preparation for the consultation Dr S read a series of documents with which she was furnished by the mother’s then solicitor, including the Family Report and other documents relating to the health of the child. The history taken by Dr S was essentially the mother’s version of the parties’ relationship and the state of this litigation. The mother asserted to Dr S she did not have, and has never had, any anxiety disorder. That was probably incorrect since the mother admitted in cross-examination she had consulted at least two different psychologists about her anxiety and depression over the years elapsed between 2007 and 2010. She also told the single expert less than two months later in August 2011 she was experiencing symptoms of anxiety,[28] and the single expert noted she had been diagnosed in 2009 with depression and anxiety and treated with cognitive behavioural therapy.[29]
[28] Single expert report, page 11
[29] Single expert report, page 14
When alerted to the existence of that evidence during her cross-examination, Dr S still adhered to her conclusions the mother had no “concerning or significant mental health issues”, was not “overly anxious or suffering with an anxiety disorder”, required no treatment, and there was no psychiatric reason why the mother should not have “shared custody” of the child. However, it was obvious Dr S had accepted the truth and accuracy of the history provided by the mother as elemental to her opinion, so inaccuracy in the historical foundation for the doctor’s expert opinion must logically weaken its reliability.
In any event, nothing really turned on the question of whether the mother suffered from some form of psychological affectation. Although that was the subject of some speculation by the Family Consultant, there was no evidence to establish the fact on the balance of probabilities. The problems experienced by the child were attributed by the parties, the Family Consultant and single expert to other causes.
Proposal and evidence of independent children’s lawyer
The Independent Children’s Lawyer did not begin the trial with any settled position.
During final submissions the Independent Children’s Lawyer tendered a minute of orders he proposed,[30] the essential effect of which were:
a)“Final” orders for the child to live with the father (Order 1), to communicate with the mother by telephone (Order 3), and for the parties to have equal shared parental responsibility for the child, other than in respect of “education and medical needs”, for which the father should have sole parental responsibility (Orders 2, 4, 5); and
b)“Interim” orders for the child to spend time with the mother in circumstances agreed between the parties (Order 2) whilst the parties and child participate in a range of therapies, which include “family therapeutic counselling” (Order 1), counselling about “attachment disorder” (Order 3), and assistance at the C Family Service residential program (Order 4), after which time an update Family Report would be prepared (Order 5) and the matter reviewed by the Court.
[30] Exhibit ICL9
The Independent Children’s Lawyer adduced evidence from the principal of the child’s school and his class teacher. Their proofs of evidence, which they adopted orally on oath, were tendered.[31]
[31] Exhibits ICL2 and ICL3
The Independent Children’s Lawyer also relied upon the evidence of the Family Consultant, who prepared a Family Report dated 27 January 2011, and the single expert, who prepared a report dated 12 August 2011. The Family Consultant and single expert both adopted the contents of their reports in evidence prior to their cross-examination.
Applicable legal principles
Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
Best interests of child – primary considerations
Section 60CC(2)(a)
The child undoubtedly has a meaningful relationship with the father from which he derives considerable benefit. It was common ground the quality of that relationship must be preserved in order to promote the child’s best interests.
The child was observed by the Family Consultant to react with affection towards the father,[32] to whom she considered the child was securely attached.
[32] Family Report, pars 42, 48, 49
The single expert did not describe her observations of the child’s interaction with the father in either positive or negative terms,[33] but in cross-examination she also said she regarded the child as attached to the father.
[33] Single expert report, page 3
Significantly, following observations by both the Family Consultant and the single expert of the child’s heightened agitation in the mother’s company, they each summoned the father’s assistance and observed him to successfully calm the child. The single expert even summoned the father with the mother’s approval.[34] The child was “significantly better regulated when with his father” in the frank opinion of the single expert.[35]
[34] Family Report, pars 56-59; Single expert report, page 5
[35] Single expert report, page 13
The comparable quality of the child’s relationship with the mother was an important issue in these proceedings, evoking considerable debate.
There was a surfeit of evidence about the child’s violent attacks upon the mother, including by kicking, biting, hitting, and scratching her.[36] The mother admitted such behaviour,[37] some of which was witnessed by the Family Consultant,[38] a counsellor from D Family Support Services,[39] and the contact supervisors at the contact centre.[40] The single expert witnessed the child’s open defiance of and threats to the mother, and was herself a victim of the child’s aggression in the mother’s presence.[41]
[36] Family Report, pars 18, 65
[37] Family Report, par 28; Single expert report, page 11
[38] Family Report, pars 51, 55
[39] Family Report, par 65
[40] Exhibits F7 and F9
[41] Single expert report, pages 4-5
Apart from outright violence, both the Family Consultant[42] and single expert[43] observed the child to resist the mother’s attempts to engage him in play. That was also observed by the supervisors at the contact centre.[44]
[42] Family Report, pars 52, 54
[43] Single expert report, page 4
[44] Exhibits F7, F8, F9, and F10
The Family Consultant was alert to the possibility the child may have been acting uncharacteristically in her presence, but that seems unlikely given the same behaviour has been witnessed by others.[45] The mother actually told the single expert the child’s behaviour at her observation session was atypical,[46] but that was incorrect in light of the available evidence. The single expert noted similar observations to those made by her were also made by the Family Consultant, the counsellor, the father, and the paternal aunt.[47]
[45] Family Report, pars 65, 68
[46] Single expert report, page 11
[47] Single expert report, page 13
Despite the child’s violent conduct and ambivalence towards her, the mother alleged, and the father conceded, the child loves the mother. But love is not of itself determinative of the nature of the relationship between them. A meaningful relationship is one which is qualitatively important, significant and valuable to the child (see McCall v Clark (2009) 41 Fam LR 483 at 507-510).
The Family Consultant considered the child had an “ambivalent attachment” with the mother.[48] The single expert generally endorsed the view of the Family Consultant, stating the child has a “very concerning, insecure attachment” to the mother, even though she is an important person in his life.[49]
[48] Family Report, par 69
[49] Single expert report, page 14
The mother rejected the notion the child was not securely attached to her, which idea she found obnoxious, and so that evidence was the subject of extensive exploration and elaboration in cross-examination.
The Family Consultant explained the child’s unsatisfactory “attachment style” with the mother will remain unchanged unless it can be repaired through therapeutic intervention, about the success of which she was not particularly optimistic.
The single expert said the cause of the child’s gross behaviour was probably “multi-factorial” and may never be completely understood. However, she opined the primary cause lay in disruptive attachment between the child and the mother and was compounded by the child’s intrinsic personality traits.
The single expert explained the child’s insecure attachment to the mother. There are various forms or “styles” of insecure attachment. While the Family Consultant considered the style in this case to be “ambivalent”, the single expert instead considered it “disruptive”, which is a more serious or aggravated style than “ambivalent”. The child did not have an “attachment disorder”, but rather had failed to develop a secure attachment to the mother in the critical phase of his childhood. Unlike children who develop secure attachments to parental figures, who learn adaptive behavioural strategies to cope with stress and anxiety, insecurely attached children do not. Their behavioural strategies are maladaptive and destructive.
In this case specifically, the child’s “disorganised attachment” to the mother induces conflicting impulses to both approach and repel the mother. Accordingly, the child can sometimes seek out the mother and at other times attack her with considerable ferocity.
The mother contended the Family Consultant and single expert were biased against her, even asserting the single expert’s motive was revenge for the mother having protested indignantly against the single expert’s self-defensive physical restraint of the child.[50] I do not accept either the Family Consultant or the single expert was biased against the mother. In each case, their opinions were considered, reasoned and logical and I accept the validity of their evidence. Their opinions were also corroborated by the psychologist who reviewed the child as part of his initial autism assessment. That psychologist expressed concern about the manner in which the mother interacted with and managed the child.[51]
[50] Mother’s affidavit, par 124
[51] Family Report, par 66
I conclude the child’s relationship with the mother is important to him, but the relationship is qualitatively inferior to the relationship he enjoys with the father. The child will derive benefit from retaining his relationship with the mother, but the manner of regulating their interaction in order that the child derives benefit and avoids detriment presents a real challenge.
Section 60CC(2)(b)
The father contended this factor was an irrelevant consideration, there being no need to protect the child against physical or psychological harm from subjection or exposure to abuse or family violence.
The mother’s position was not so categorical. She adduced evidence of the manner in which the father had allegedly treated her and the child from which it was only possible to infer she harboured concerns about the father’s disposition towards family violence and abuse.
The mother alleged the father manhandled her on an occasion in February 2010[52] and also acted in a threatening manner towards her at or about the time of their marital separation in August 2010.[53] The father gave a much more benign version of both incidents when cross-examined by the Independent Children’s Lawyer about the incidents, attributing blame equally to the parties.
[52] Mother’s affidavit, par 108
[53] Mother’s affidavit, par 100
The mother also witnessed the father tap the child on the head with his knuckles as a form of discipline in mid 2009.[54] The father admitted having done so, but again, the parties’ perceptions of the severity of the incident differed markedly.
[54] Mother’s affidavit, par 109
The mother also alleged the child had complained to her of rough treatment by the father during December 2011 and January 2012.[55] That evidence was not raised in the cross-examination of the father but the Independent Children’s Lawyer raised the issue with the mother in her cross-examination. The mother reported at least one of those allegations to the NSW Department of Family and Community Services in December 2011,[56] but the matter was apparently not investigated. The father was certainly not interviewed or prosecuted and it was clear the mother regarded the issue as closed.
[55] Mother’s affidavit, pars 101, 107
[56] Exhibit ICL7
It is important to contextualise the mother’s evidence. She proposed the father should have equal shared parental responsibility for the child and that the child spend substantial and significant unsupervised time with him. It could hardly therefore be the mother’s case that the father poses a risk of harm to the child, either by the child’s abuse or by his exposure to family violence. If it were otherwise the mother would not logically have proposed the orders she did.
I am satisfied there is no need for the Court to protect the child from physical or psychological harm caused by subjection or exposure to abuse or family violence.
The issue of neglect was not raised by either party or the Independent Children’s Lawyer and is therefore irrelevant.
Best interests of child – additional considerations
Section 60CC(3)(a)
The child made comments to the Family Consultant suggesting his closer attachment to the father,[57] but also told the single expert he wanted to have “sleepovers” at the mother’s home and to go home with the mother that day.[58]
[57] Family Report, pars 45-47
[58] Single expert report, page 3
I pay little heed to the representations made by the child to the Family Consultant and single expert. The child is too young to have any weight attributed to his views. His behaviour is a more reliable indicator of his feelings than his statements.
Section 60CC(3)(b)
The nature of the child’s relationships with the parties has already been sufficiently addressed under s 60CC(2)(a) of the Act.
There was no evidence of the child’s relationships with members of the paternal family.
Nor was there much evidence about the child’s relationships with the maternal family. The maternal grandfather lives in Queensland and the maternal grandmother, from whom the mother was estranged for many years, lives in D. The single expert concluded the mother was not close to her siblings.[59]
[59] Single expert report, page 11
Section 60CC(3)(c), (4)
There was no dispute the mother was willing and able to facilitate and encourage the relationship between the child and father, which I find as a fact.
It seemed the mother took a reciprocal view of the father, telling the single expert he was a “good father”.[60] However, she seemed preoccupied with the father’s proposal for the child to only spend time with her under supervised conditions, which the mother believed would preclude a close and continuing relationship between her and the child.
[60] Single expert report, page 12
The mother’s concern arose from the contents of the Family Report, which revealed that in January 2011 the father proposed supervised time between the child and mother[61] and the Family Consultant’s recommendation for that outcome.[62] As the Family Consultant pointed out in cross-examination, irrespective of the father’s proposal, her recommendation was independently formulated and based on both her observations and the material she read. In any event, the consent orders made in March 2011 prove the father was content for the child to continue spending time with the mother without supervision.
[61] Family Report, par 7
[62] Family Report, pars 74-75
The Court did not order the imposition of supervision until the interim orders were later made in September 2011, following release of the single expert’s report recommending that outcome. The father informed the single expert in August 2011 he believed the time spent by the child with the mother should be supervised for the “foreseeable future”, but it was clear he anticipated ultimate dispensation of the supervision.[63] That remains his position. The orders he proposed contemplate the child spending regular unsupervised time with the mother once the prospect of the child’s consequential psychological harm is eradicated.
[63] Single expert report, page 7
The Family Consultant and single expert both made observations about the father’s heartfelt sympathy for the mother.[64] His evidence during cross-examination only served to corroborate those sentiments. An email recently written by the father to the mother is replete with his empathy.[65] I am quite satisfied the father is willing and able to facilitate a close and continuing relationship between the child and the mother. He is simply concerned for how that relationship is best promoted in light of the cautious opinions expressed by the Family Consultant and single expert.[66]
[64] Family Report, pars 14, 71; Single expert report, page 7
[65] Mother’s affidavit, Annexure A25 (page 129-130)
[66] Father’s affidavit, par 59
Section 60CC(3)(d)
The child has been deprived of interaction with the mother since February 2012. I impute that the deterioration in his behaviour at school at the end of February and early March 2012 was, at least in part, his adverse reaction to that change of circumstances. That conclusion is consistent with the evidence of the single expert.
Since the child’s return to school on 12 March 2012 following his suspensions his behaviour has improved markedly. I accept the single expert’s opinion that is likely due, at least in part, to the child’s adjustment to the mother’s physical absence from his life and his re-assurance the mother has not abandoned him.
The orders do not change existing parenting arrangements for the child – at least those that have applied since supervised visits with the mother ceased some months ago.
The only change to which the child will need adapt is the re-introduction of the mother to him at the discretion of the clinical therapist. Presumably such re-introduction will only occur carefully and sensitively under close control by the therapist, in which circumstances the child will cope. If it were otherwise I expect the therapist would abandon or modify the re-introduction.
Section 60CC(3)(e)
Compliance with the orders will not entail any practical difficulty or expense. Neither party nor the Independent Children’s Lawyer suggested the contrary.
Section 60CC(3)(f)
There was an underlying factual dispute about the reason for the gross behaviour exhibited by the child, which was so pronounced it caused the single expert to pejoratively describe the child in cross-examination as “omnipotent, coercive, manipulative, demanding, and very anxious”.
On the evidence adduced there are really only two plausible explanations for it. Either the child is afflicted by some form of undiagnosed organic condition which impairs his socialisation, or alternatively, by reason of his insecure attachment to the mother the child learned and now applies maladaptive behaviour in social situations he finds challenging or stressful.
The mother contended for the former explanation, but her unqualified opinion was uncorroborated. The single expert strongly championed the latter explanation and the views of the Family Consultant were similar.
The mother disavows any responsibility for the child’s behaviour and asserts the child suffers from some organic condition, which she suspects is akin to autism.[67] The mother adduced evidence of her ample capacity to provide for all physical, intellectual and emotional needs of the child.[68] While I accept the mother’s belief in her capacity is genuine, I accept the abundance of countervailing evidence demonstrating the mother has difficulty meeting the emotional needs of the child.
[67] Family Report, par 27; Single expert report, page 11
[68] Mother’s affidavit, pars 17-22, 85
The problem has been long-standing. The child’s aberrant behaviour was evident from an early age during the parties’ cohabitation,[69] when the mother contended she was the primary carer for the child, and such behaviour has continued largely unabated between the child and mother ever since the parties’ separation. There is a broad correlation between instances of the child’s poor behaviour and occasions of his interaction with the mother, suggesting the child finds some adverse psychological stimulus in the mother.
[69] Family Report, par 26
The preponderance of evidence establishes the child’s behaviour with the mother is generally unrestrained and potentially harmful to himself and others whereas, by comparison, the child’s behaviour with the father is far more regulated and settled. That has been observed and independently verified by numerous witnesses, including the counsellor from D Family Support Service, the contact centre staff, the Family Consultant, and the single expert.
But that is not to say, however, the child’s behaviour is unremarkable when living with the father and away from the mother. It has not been, as evidenced by the child’s recent school suspensions and other admissions made by the father.[70]
[70] Father’s affidavit, pars 47-48, 50
The single expert was not surprised by the child’s school suspensions, commencing on 27 February 2012, in light of several facts – the preceding disruptive visits with the mother on 11 and 18 February 2012, the consequent threat by the contact supervisor on the second of those visits to suspend future visits with the mother, and the suspension then occurring so as to preclude the expected visit with the mother on 25 February 2012. The single expert believed those events would have induced anxiety in the child.
The mother contended it was impossible to identify her as part of the child’s problems if she was “not around”, but the single expert explained how the child’s disruptive behaviour is consequential upon his insecure attachment and how the occurrence of such behaviour is not dependent upon the presence of the insecurely attached parent. In fact, the absence of the insecurely attached parent can actually cause an episode of such behaviour.
In respect of the relationship dynamic between the child and mother, the Family Consultant considered the mother was “unattuned to the child and enmeshed in a dysfunctional dependent relationship” with the child.[71] The single expert considered the mother was as highly aroused as the child, disorganised, and responded inappropriately to the child’s behaviour.[72] She also opined the mother is grieving the loss of the child from her daily life and has “no insight into her markedly impaired parenting capacity”.[73]
[71] Family Report, pars 25, 73
[72] Single expert report, page 13
[73] Single expert report, page 14
Aspects of child’s social development when with the mother were also the subject of comment. The child was not toilet trained by the mother in a timely way and did not become toilet trained until he moved to live with the father in March 2011, by which time he was four years and five months of age.[74] Intellectual delay is not the explanation for that because it is commonly accepted the child is bright. Nor was the child weaned until he moved to live with the father in March 2011.[75] The mother was still breastfeeding the child, which she had intended continuing until the child commenced school in 2012 when aged five years.[76] Although the mother considered the practice acceptable, the single expert seemed doubtful,[77] the child did not require it for nutrition, and the Family Consultant wondered whether the mother did so for her own benefit rather than the child’s.[78]
[74] Single expert report, page 7
[75] Single expert report, pages 7, 10
[76] Family Report, par 29
[77] Single expert report, page 10
[78] Family Report, par 70
Given the mother’s refusal to accept the child’s behavioural dysfunction could be sheeted home to her, she embarked on a relatively futile mission to find another plausible explanation which she found acceptable. She sought numerous medical opinions about the existence in the child of any organic or physiological condition.
The mother took the child to Dr P, paediatrician, in March 2010. The doctor did not consider that any of the child’s problems reported by the mother were “significant enough to warrant a diagnostic label”.[79]
[79] Exhibit F6
The mother took the child to Autism Spectrum Australia (“ASPECT”) for comprehensive diagnostic assessment in July 2010, which was completed by Ms M, psychologist. Ms M concluded:[80]
…the scores for [the child] lie outside the range for a diagnosis of autism across all three areas rated.
…[the child’s] performance on this assessment placed him outside the range for diagnosis of an autism spectrum disorder.
…it is apparent that [the child’s] presentation is clearly not consistent with a formal diagnosis of an autism spectrum disorder, i.e. Autistic Disorder, Asperger’s Disorder, or Pervasive Development Disorder Not Otherwise Specified.
…the evidence available at this time does not support a diagnosis for [the child] of an autism spectrum disorder.
[80] Father’s affidavit, par 24, Annexure A
The mother was advised by both Dr P in March 2010 and Ms M in July 2010 that the child’s behaviour would likely improve if he was enrolled at pre-school as soon as possible to develop his social skills.[81] The mother did not follow that advice because the child was neither toilet trained nor weaned. She did not enrol the child at pre-school until early 2011, only several weeks before the child was moved to the residence of the father.
[81] Family Report, pars 61, 63; Exhibit F6; Father’s affidavit, Annexure A
The mother was dissatisfied with the opinions expressed by Dr P and Ms M[82] and arranged an appointment with another paediatrician, Dr U, in January 2011.[83]
[82] Father’s second affidavit, pars 20, 24
[83] Family Report, par 68; Mother’s affidavit, par 41
The appointment with Dr U occurred several days after the mother’s consultation with the Family Consultant. At her preceding interview with the Family Consultant the mother said she would not accept Dr U’s opinion about the child either if he was unable to diagnose any particular condition in the child.[84]
[84] Family Report, par 32
Dr U’s report offered the mother some glimmer of hope that the child does suffer from an organic condition, which goes some way to explain why the mother has so desperately clung to the contents of his report as influential in the outcome of these proceedings. In cross-examination the mother said she thought Dr U was “the only one to get it right”.
Dr U reported:[85]
…[the child]…manifests some features that are characteristic of the Autism Spectrum but not enough features to meet diagnostic criteria for any of the sub-categories.
The diagnosis I think is less than clear at this stage. In my view Pervasive Development Disorder – Not Otherwise Specified would be an appropriate diagnosis.
[85] Mother’s affidavit, Annexure A16
The mother seized upon the “less than clear” diagnosis of “Pervasive Development Disorder – Not Otherwise Specified”, but she did so in ignorance of other evidence.
For reasons which remain quite opaque, Dr U also wrote an apparently contradictory opinion on the same date he prepared the report in which the mother reposes such faith. On 31 January 2011 Dr U wrote to a speech pathologist about the child and said:[86]
…[the child] doesn’t meet diagnostic criteria for the defined conditions of Autistic Spectrum Disorder, Asperger’s Syndrome, PDD-Not Otherwise Specified.
PDD-NOS would seem to me to be a reasonable diagnosis.
[86] Exhibit F5
Some months later, in April 2011, Dr U also completed a Centrelink Carer Allowance form in respect of the child in which he stated:[87]
Complex disorder with features of Autistic Spectrum but not satisfying diagnostic criteria for formal diagnosis.
[87] Mother’s affidavit, Annexure A17
How Dr U could offer an opinion the child could reasonably be diagnosed with “Pervasive Development Disorder – Not Otherwise Specified” when acknowledging the child does not meet the diagnostic criteria for the condition remains unexplained. Such apparent illogicality, in conjunction with the other contrary expert opinions, diminishes the weight that can safely be reposed in Dr U’s opinions.
In his report to the child’s general practitioner on 31 January 2011, Dr U additionally postulated as mere possibilities the child’s sufferance of various chromosomal disorders or dysmorphic syndromes, of which “difficult behaviour” are characteristic. He therefore advised “formal chromosome testing” by a specialist with more experience and expertise than himself. Dr U also recommended “formal paediatric cardiology assessment” at a nominated hospital because of the paternal history of hypertrophic cardiomyopathy. The doctor did not suggest the cardiological investigation was linked in any way to the child’s behaviour though. It was apparently a precautionary measure because of the father’s genetic heart condition.
It was the mother’s intention to follow up Dr U’s suggestions of further investigation, but the child moved to live with the father in March 2011.
The mother was critical of the father’s refusal or failure to speedily implement Dr U’s suggestions, which she regarded as negligent and lacking concern.[88] However, I do not accept her characterisation of the father’s attitude in that way. The father wanted a reprieve for the child from the medical intervention he had endured so the child could “normalise”,[89] and his strategy enjoyed the support of both Dr G[90] and the single expert.[91]
[88] Mother’s affidavit, pars 93-98, 114
[89] Single expert report, page 7
[90] Single expert report, page 7
[91] Single expert report, page 13
Although the father relied upon other expert medical opinions he had earlier received to the effect the child need not be investigated for cardiomyopathy until puberty,[92] the father did submit the child to an ECG in March 2012 and an echocardiogram has been arranged for June 2012.
[92] Father’s second affidavit, par 3
The father took the child to Dr G in June 2011 for the genetic testing recommended by Dr U,[93] although he apparently did so “under protest”.[94] Dr G reported to Dr U:[95]
[The child’s] physical features don’t indicate towards any specific syndrome diagnosis. He…does not have other features of Noonan syndrome or William syndrome.
[93] Mother’s affidavit, par 70; Father’s second affidavit, par 4
[94] Single expert report, page 7
[95] Father’s second affidavit, par 4, Annexure B
Dr G also discussed with the father the “possibility” of testing the child for further chromosomal differences and Fragile X syndrome, but agreed the testing should be deferred as there was no urgency. Similarly, the cardiac assessment was to be followed up months later.
The father took the child back to see Dr P, his original paediatrician, in March 2012.[96] He did so after consultation with the school principal concerning funding for allocation of a teacher’s aide for the child. Dr P reported the child had no cardiac symptoms and his heart was clinically normal. He also repeated his opinion the child is not autistic and disagreed with Dr U’s suggestion the child was dysmorphic.[97]
[96] Father’s second affidavit, par 24
[97] Exhibit F4
The single expert rejects the proposition the child’s challenging behaviour is underpinned by autism or any like condition.[98] During her cross-examination the Family Consultant also said that, in her experience, autistic children were incapable of rapidly regulating their behaviour as she had witnessed the child do with the mother and father at the observation sessions in January 2011.
[98] Single expert report, page 13
In cross-examination the single expert said plainly she did not believe the child had any “pervasive development disorder”, and further, it was “highly unlikely the child is compromised organically”. In her view, the negative autism assessment completed by ASPECT was much more persuasive than the opinion loosely expressed by Dr U,[99] and any further testing for some form of chromosomal abnormality was “just a red herring” which only need be pursued to abate the mother’s anxiety.
[99] Single expert report, page 13
On the balance of probabilities, the child’s behavioural problems are attributable to his insecure attachment to the mother and not some underlying organic condition. The mother’s impaired parenting capacity was the primary cause of the child’s insecure attachment to her.
In any event, even if the child’s behavioural problems are compounded by an underlying organic condition, the single expert explained that was all the more reason why the child was in desperate need of confident, consistent and predictable parenting to stabilise his anxiety and help him learn to replace maladaptive behaviour with adaptive behaviour. The mother could not provide parenting of that quality because of her impaired parenting capacity.
Notwithstanding the deficiency of the mother’s parenting capacity, there can be no doubt at all the mother loves the child deeply and genuinely wants what is best for him. Even the father knows that.[100] He said in cross-examination the mother’s intention to do her best for the child was “unmistakeable”.
[100] Single expert report, page 7
Sections 60CC(3)(h), (6)
Neither party identified themselves or the child as Indigenous Australian.
Sections 60CC(3)(i), (4)
I am satisfied both parties possess an appropriate attitude towards the child and the responsibilities of parenthood.
No matter the conclusions about the mother’s impaired capacity to provide for the child’s emotional needs, she certainly desires the best for the child and does her utmost to ensure it.
Section 60CC(3)(j)
The issue of family violence has already been addressed under s 60CC(2)(b) of the Act. I do not accept the mother is at risk of family violence perpetrated by the father, nor is the father is at risk of family violence committed by the mother.
Section 60CC(3)(k)
There are no relevant family violence orders in existence.[101]
[101] Family Report, par 5
Section 60CC(3)(l)
The Independent Children’s Lawyer proposed the Court make only interim orders and later review the matter in order to minimise the prospect of further litigation, but contending for continuation of the litigation in order to avoid further litigation is a paradox.
Both parties were desirous of the litigation being finalised, although each acknowledged there was merit in the proposal to make only interim orders, albeit for different reasons. The father did not oppose interim orders if that course was most likely to lead to rejuvenation of the child’s relationship with the mother without concomitant adverse effect upon his behaviour. The mother said she would reluctantly submit to orders of that type if the Court rejected her proposal that the matter be finalised by returning the child to her residence.
If only interim orders were made it would ensure continuation of these proceedings. On the other hand, if final orders were made under which no definitive regime of interaction between the child and mother is prescribed it remains likely further proceedings will ensue. Consequently, neither course is really more suited to avoid the prospect of further proceedings.
Section 60CC(3)(m)
Once it is accepted the relationship between the child and mother is in dire need of remediation and that the long-term best interests of the child are served by him having a meaningful relationship with the mother then it necessarily follows that some form of therapy must be implemented.
In those circumstances, the options seemingly open to the Court were either:
a)Making only interim orders, which require participation in therapy, the delayed preparation of an update Family Report to gauge the success of the therapy, followed by another trial to determine the final parenting orders that should then be made, or
b)Making final orders now, which require conditional participation in therapy so as to ensure the validity of the orders (see Marriage of L & T (1999) 25 Fam LR 590 at 603-606; Jacks & Samson (2008) FLC 93-387 at [200]-[226])), but:
i)Leaving the decision about when and how the child resumes interaction with the mother to the discretion of either the therapist engaged to undertake the therapy or the father (either as an incident of his parental responsibility or pursuant to specific order), or
ii)Making no specific order about the circumstances under which the child spends time with the mother, noting the entitlement of the mother to commence fresh proceedings to review that issue in the event of changed circumstances.
The father primarily advocated for the option set out in paragraph 128(b)(i), leaving it to the therapist to make the future decision. I reject that approach because it necessarily entails abdication of responsibility by the Court and the investiture of the therapist with untrammelled power over the parties and the child.
Nor am I attracted to the alternative option in paragraph 128(b)(i), leaving the father with unfettered control over the child, irrespective of whether the intended therapy is successful. I doubt the father would act vindictively and abuse that position of authority, but it would be a mistake to unilaterally empower the father in that way. The mother would certainly resent it.
The Independent Children’s Lawyer advocated for the option set out in paragraph 128(a) because the success of the intended therapy could be monitored before the Court commits to final orders.
The option set out in paragraph 128(b)(ii) was also attractive, albeit for different reasons. That option would finalise the proceedings, as the parties mutually desired, and leave future interaction between the mother and child to abide the parties’ agreement following the completion of therapy.
The Independent Children’s Lawyer obviously believes the parties are capable of reaching agreement about the time the child spends with the mother, because he proposed an interim order that they do so. Inferentially, the Independent Children’s Lawyer must countenance the prospect the parties will be able to agree upon parenting arrangements following therapy so as to avoid the need for further litigation. But it is futile making an order – final or interim – that the child should spend time with the mother as agreed between the parties, since they have so far been unable to do so. That was why these proceedings were commenced and then litigated to trial.
If, however, the final orders were silent about arrangements under which the child spends time with the mother, neither dictating such circumstances by prescription nor injunction, it is always possible for the mother to commence fresh proceedings to review that aspect of the child’s parenting arrangements. Such fresh proceedings would probably surmount the impediment imposed by Rice v Asplund (1979) FLC 90-725 – the changed circumstances being participation by the parties and child in the family therapy.
Although strongly attracted to the idea of finalisation of the litigation, I am persuaded otherwise. Making orders that leave future parenting arrangements for the child unresolved really leaves the parties and the child in a predicament of uncertainty. The mother also ably submitted that if she was obliged to commence fresh proceedings following therapy to resolve any further differences then the delay she would encounter in reaching another trial would likely be considerably longer than the delay entailed in the completion of the intended therapy and resumption of these proceedings. That too was a powerful consideration for the imposition of only interim orders.
However, in deciding to make interim orders I reject the Independent Children’s Lawyer’s proposal to make a mixture of final and interim orders. It is both an oxymoron and unnecessary to make final parenting orders at only an interlocutory stage of the proceedings.
Parenting orders
Despite the evidence canvassed under s 60CC(2)(b) of the Act, I am not satisfied there are reasonable grounds to believe the parties, or either of them, engaged in abuse of the child or the commission of family violence. Consequently, the presumption of equal shared parental responsibility applies (s 61DA(2)), unless otherwise rebutted by evidence satisfying the Court such an outcome would not serve the best interests of the child (s 61DA(4)). However, given the decision to presently make only interim orders, the presumption of equal shared parental responsibility does not apply if the Court considers it would not be appropriate (s 61DA(3)).
The parties are not particularly ill-disposed to one another. They are capable of civil discussion about the best interests of the child, notwithstanding the divergence of their opinions. True it is the mother would prefer more personal or telephonic discussion with the father about the child, but the father is not avoidant of the mother. He simply prefers to conduct their discussions in writing, either by email or text message. The lines of communication are still open between them. The mother has email access at work but apparently not at her home. Nonetheless, that has not seemingly impeded her ability to correspond with the father and many others about matters of concern to her about the child.
If the parties’ communication is confined to matters germane to the exercise of their parental responsibility it need not be all that frequent because issues of major long-term importance for the child only arise intermittently (ss 4, 61B, 65DAC).
However, the parties’ joint management of the child has not been entirely seamless. They have very different ideas about the medical management of the child. That issue permeated the evidence in the proceedings from beginning to end. It is unlikely they will reach compromise over that issue. For that reason I am presently persuaded the Court should ultimately invest one party with sole parental responsibility in respect of the child’s medical management.
Since it is currently inevitable the child must live with the father, for reasons which follow, the father should probably have sole parental responsibility for the child’s medical management. That was the Independent Children’s Lawyer’s express proposal and also implicitly part of the father’s proposal for him to have sole parental responsibility in all respects.
I am not presently attracted to the Independent Children’s Lawyer’s proposal for the father to also have sole parental responsibility for the child’s education. The parties have proven their ability to rationally discuss and compromise their views on that topic.[102] The child attends a school which the parties agreed was suitable for him. The parties also jointly participated in the formulation of the strategy under which the child was returned to class following his suspensions. Any past subtle attempt by the father to oust the mother’s involvement in the child’s educational decisions should not be permitted to flourish.[103]
[102] Exhibit M5
[103] Exhibit M1
The evidence would presently lead to the conclusion that final orders should be made for the father to have sole parental responsibility in respect of the child’s medical management, but for the parties to have equal shared parental responsibility in all other respects. However, final orders are not presently being made. Only interim orders are being made and so the allocation of parental responsibility is inextricably bound to the decision about the child’s current living arrangements.
Presently, the child must live with the father and no orders should be made for the child to spend time with the mother. The re-introduction of the child to the mother must be accomplished sensitively and in accordance with the advice of the therapist who is to be engaged in an attempt to retrieve the child’s relationship with the mother. In such circumstances I am satisfied the father should have sole parental responsibility for the child in all respects whilst the interim orders are in force, and it would therefore not be appropriate to apply the presumption of equal shared parental responsibility (s 61DA(3)).
The child has lived with the father since the interim orders were made in March 2011. There is no justification for any change of residence. I accept the evidence of the Family Consultant and single expert to that effect.
Even the mother acknowledged another change of residence for the child may not be wise due to the passage of time since the child moved to live with the father.[104]
[104] Mother’s affidavit, par 126
The mother also regarded a parenting regime of “equal shared care” to be “the worst case scenario”,[105] so it is impossible for the child to live with the parties for equal time, quite apart from the problem presented by the geographic separation of their households.
[105] Single expert report, page 10
In the event of continuation of the child’s residence with the father, the mother pressed the Court for orders prescribing an extensive program of unsupervised time to be spent by the child with her, but it would be a grave mistake to currently make orders providing for the child to spend substantial and significant time with the mother.
In January 2011 the Family Consultant was deeply concerned the child would suffer “significant mental health issues” if he continues to demonstrate the same level of distress she observed when in the company of the mother.[106] Consequently, she recommended the child live with the father and spend only supervised time with the mother.[107]
[106] Family Report, pars 72, 74
[107] Family Report, pars 74-75
In September 2011 the single expert recommended the child live with the father. She could not support the child spending time with the mother unless supervised in a contact centre for a period of 12 months. The single expert explained the purpose of such supervision was “containment” and production of “written records of their interactions” by the contact centre to enable re-assessment of their relationship at the conclusion of that trial period.[108] That is precisely what occurred between September 2011 and February 2012, but those arrangements failed miserably.
[108] Single expert report, pages 14-15
The mother now flatly refuses to allow the child to spend time with her if it is subject to supervision, notwithstanding the unaltered views of the Family Consultant and single expert about the inadvisability of the child spending unsupervised time with the mother.
The Family Consultant said in cross-examination she had no idea how the mother could successfully contain the behaviour of the child without supervision if she was unable to do so in the confines of a contact centre.
Unfortunately, the mother’s parenting capacity has not been appreciably improved by her completion of various parenting courses.[109] The danger of emotional harm posed by the mother to the child, of which the Family Consultant and single expert each spoke, has not been ameliorated. Not even the imposition of supervision in the formal setting of a contact centre provided a sufficient buffer against such harm. Inexorably, the child cannot spend any time with the mother until their relationship can be repaired under the tutelage and supervision of a therapist.
[109] Mother’s affidavit, par 23; Single expert report, page 12
The orders therefore require the parties and child to participate in therapy and leave to the discretion of the therapist the point at which the child and mother can be brought together during the therapeutic process. There is no injunction prohibiting the child from spending time with the mother, as that would potentially hinder the child’s interaction with the mother during therapy.
The Family Consultant was circumspect about whether therapy would achieve the desired outcome, but she recognised there was little else to try.
The single expert, however, was insistent the child was in need of urgent professional help. In her opinion, the appropriate professional to conduct the therapy would be a child psychiatrist who could assist the child to develop greater control and regulation of his emotions. Once the child is more capable of emotional regulation it would be easier to correct his maladaptive behaviour. After the therapist had begun that process with the child the parents could then be introduced to the therapy, at the discretion of the therapist.
The mother said in cross-examination she would willingly participate in such therapy, but her willingness was later qualified by her wish to retain her own professional advice and her desire for those professionals not to have access to the Family Report and single expert report, as she was concerned the contents of those reports would unfairly influence the opinions of the experts she chose.
The conditions imposed by the mother on such therapy are unacceptable. I expect she will co-operate in the process irrespective, but if she does not and the therapy is unsuccessful then her relationship with the child may be lost, at least until the child attains his majority and makes decisions for himself about the persons with whom he pursues relationships.
The single expert suggested the therapist should be a child psychiatrist, ideally with familiarity and expertise in dealing with “attachment issues”. The Independent Children’s Lawyer showed the single expert the curriculum vitae of some unidentified person to see whether the single expert thought that person was capable of performing the requisite therapy. The single expert said the curriculum vitae did not disclose whether the person was familiar with attachment theory and “the psycho-dynamic understanding of relationships”. It remains unknown whether that curriculum vitae related to the person now nominated by the Independent Children’s Lawyer in his proposed orders as the therapist. If it is, that person does not have the endorsement of the Independent Children’s Lawyer. If it is not, nothing is known by the Court of that person to either adopt or reject that person’s appointment.
The single expert was specifically asked for an estimate as to the duration of such therapy. She was understandably unable to answer the question, since it is intrinsically linked to the personalities of the participants. For that reason the orders prescribe a hiatus period of relatively arbitrary duration until an update Family Report is prepared and the matter is brought back before the Court for further consideration.
The Family Consultant and single expert were both convinced that re-assessment of the child’s relationship with the mother was necessary following the course of the proposed therapy. The success of the therapy will be influenced not only by the child’s ability to learn more adaptive behaviour, but also the mother’s willingness and ability to modify her behaviour with the child.
The Independent Children’s Lawyer proposed an additional order that the parties participate in the residential program provided by C Family Service. There was very little evidence about the program, but it was said to involve a child and residential parent undertaking guidance about their relationship whilst living in a residential facility.
The Family Consultant was enthusiastic about the family’s participation in the C Family Service program, but she was not invited to explain why or how much she knew about it.
The single expert was familiar with the C Family Service program and she seemed less than enthusiastic about its suitability. The program is only five days duration and she said it would be a clinical decision by the staff about whether they even worked with the mother and child at all. That is because the program is designed to focus on a child and residential parent and the mother is not the child’s residential parent.
The Independent Children’s Lawyer conceded the program would necessarily concentrate upon the child’s relationship with the father, but that is not the central issue in the proceedings – it is the child’s relationship with the mother. The Independent Children’s Lawyer envisaged the potential for the C Family Service staff to begin their program with the child and father and introduce the mother subsequently, but in a program of only five days duration it is difficult to see what such a program offers over and above targeted therapeutic counselling. According to the single expert’s evidence, it is even possible the C Family Service staff would decline to work with the child and mother. I therefore decline to make the orders proposed by the Independent Children’s Lawyer requiring the family’s attendance at C Family Service. The absence of an order does not prevent the family from resorting to use of C Family Service if it is recommended by the therapist and the Service accepts them.
The mother said she would undertake a post-separation parenting program if ordered to do so, but only if the father was similarly obliged. Another condition she sought to impose upon her participation was complete compliance with all of Dr U’s suggestions. It is advisable for each of the parties to undertake a post-separation parenting program in the hope of educating them about the need to quell their differences, but I reject the mother’s suggestion such attendance should be made conditional upon adherence to Dr U’s recommendations about further medical investigation of the child.
Telephone communication between the child and mother has been somewhat problematic.[110] Existing orders permit the mother to telephone the child three times per week,[111] but the Independent Children’s Lawyer suggested reduction to twice per week,[112] and the father suggested once per week. The mother is highly stressed by her perceived marginalisation in the child’s life. Her written correspondence and telephone conversation with the child is saturated with her desperation. In order for the child to have some space to begin his rehabilitation I conclude his communication with the mother by telephone once per week is an appropriate frequency, although the order permits the parties to agree otherwise. The mother needs to remember that the objective is to repair her relationship with the child so the child can resume a healthy level of personal, written, and telephonic interaction with her.
[110] Father’s affidavit, pars 53-54; Exhibit M5
[111] Order 1.4 made on 25 March 2011
[112] Exhibit ICL9, Final Order 3
The orders require the father to keep the mother informed about medical developments in the child’s life and to facilitate the mother’s appraisal of the child’s academic progress.
Otherwise, the parties are not to permit the child’s exposure to denigration of one another, and they are to keep each other informed of their respective contact details.
The Independent Children’s Lawyer also proposed an order permitting release of the Family Report and single expert report to the child’s school and “treating therapists/counsellors”.[113] Provision is already made in the orders for the supply of those reports to the therapist engaged to perform the family therapy, but no evidence was adduced and no submission made about why such reports should be furnished to the child’s school or other unidentified therapists or counsellors. Accordingly, no such order is made.
[113] Exhibit ICL9, Interim Order 6
I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 24 May 2012.
Associate:
Date: 24 May 2012
Exhibits F7 and F8
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Expert Evidence
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Procedural Fairness
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Remedies
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Jurisdiction
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