MACEY & HAMILTON
[2016] FamCA 292
•2 May 2016
FAMILY COURT OF AUSTRALIA
| MACEY & HAMILTON | [2016] FamCA 292 |
| FAMILY LAW – CHILDREN – Best Interests – Where both parents acknowledge that the children have meaningful relationships with both of them and that there is no need to protect the children from physical or psychological harm – Where the parties agree the children should remain living with the mother – Discrete Issue – Where the mother wishes to relocate the children’s residence from D Town in the state of Victoria to J Town on the north coast of New South Wales, a distance of about 1,600 kilometres – Where the father opposes that relocation – Where the mother’s proposal makes weekend time between the children and the father impracticable and expensive – Where the mother did not appreciate the impact on the children of such relocation – Where the relationship between the children and the father would be diminished by a change of residence – Where the children would also lose contact with their paternal family – Children to remain living with the mother – Mother restrained from moving the residence of the children away from D Town – Children to spend substantial and significant time with the father FAMILY LAW – CHILDREN – Parental Responsibility – Where the parties agree they should share parental responsibility – Parties to have equal shared responsibility for the children |
| Family Law Act 1975 (Cth), ss 60CC, 64B |
| APPLICANT: | Mr Macey |
| RESPONDENT: | Ms Hamilton |
| FILE NUMBER: | MLC | 7010 | of | 2015 |
| DATE DELIVERED: | 2 May 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 20 – 22 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hoult |
| SOLICITOR FOR THE APPLICANT: | Heinz & Partners |
| COUNSEL FOR THE RESPONDENT: | Mr Stanley |
| SOLICITOR FOR THE RESPONDENT: | Nicholes Family Lawyers |
Orders
All prior orders in relation to B (“B”) born … 2010 and C (“C”) born .. 2012, (“the children”), are discharged.
Parental Responsibility
The parties have equal shared responsibility for the children.
Residence
The children live with the mother.
The mother is restrained from moving the residence of the children away from D Town in the state of Victoria.
Time and Communication
The children spend time and communicate with the father as follows:
5.1In accordance with Order 7 of interim parenting orders made 23 September 2015 until the commencement of Term One in 2017;
5.2From the commencement of Term One in 2017:
During school term
5.2.1 Each alternate week from Wednesday after school to 6.00 pm Sunday, commencing on the second Wednesday of Term One in 2017; and
5.2.2Each alternate week from Wednesday after school to before school the following thursday morning, commencing on the first Wednesday of Term One in 2017.
During school holiday periods
5.2.3Half of each school term holiday and failing agreement otherwise, the first half commencing at 9.00 am on the first Saturday of the period and concluding at 9.00 am on the
mid-point day;5.2.4Half of each Christmas school holiday period, being the first half in 2016 and all subsequent years in which Christmas falls in an even numbered year, and the second half commencing in January 2018 and all years in which Christmas falls in an odd numbered year; and
5.2.5In the event that the children are not spending time with the father on the weekend of Father’s Day, then from 6.00 pm on the prior Saturday until return to school on the Monday following.
In the event that the children are not with the mother on the weekend of Mother’s Day, then time with the father is suspended from 6.00 pm on the Saturday prior to Mother’s Day for the balance of the period.
Changeovers
From the commencement of the operation of Order 5.2, unless otherwise agreed between the parties, changeovers shall be effected as follows:
7.1At school, by the father or his nominee delivering and collecting the children from school, with the mother to ensure that she is not present at the school at those times; and
7.2At all other times by the mother or her nominee delivering the children to the home of the father at the commencement of a period of time, and the father or his nominee delivering the children to the home of the mother at the conclusion of each period of time.
Specific Issues
Each of the parents is restrained from changing the enrolment of B from E School without the prior written consent of the other parent.
The parties shall enrol C at E School to commence in 2017 unless there is a prior written agreement between the parties otherwise.
Both parents shall be at liberty to:
(a)Receive school photographs, newsletters, school reports and other information normally disseminated to parents, at their respective expense; and
(b)Attend kindergarten/school concerts, sports days, parent teacher interviews and other events to which parents are invited to attend.
That each party be at liberty to obtain from the children’s day-care centre, kindergarten or school, at that party’s expense, copies of any reports, photographs, newsletters or other information usually provided to parents.
That each party keep the other informed of any change of address or contact telephone numbers, both landline and mobile.
The children will attend on Dr F as their general practitioner unless otherwise agreed in writing, with the exception of accident and emergency medical attendance for the children.
The parties, or either of them, shall obtain a referral from the children’s general practitioner to Dr G (paediatrician), unless an alternate paediatrician is agreed to by the parties in writing, to obtain advice in relation to:
(a)The diet recommended by Dr H of the U Centre for B to implemented for both children;
(b)Vitamin D supplementation for B;
(c)The general health of each of the children;
AND for that purpose the parties, or either of them, shall provide to the paediatrician a copy of the document titled U Centre dated 9 June 2015 [Annexure JMH-2 to the affidavit of the mother, Ms Hamilton, filed 13 April 2015].
Each party is restrained from causing the children, or either of them, to attend for specialist medical treatment, psychological assessment/treatment or therapeutic intervention of any kind, without the prior written consent of the other party.
The parties shall do all such acts and things to:
(a)Notify one another, as soon as practicable, of any significant illness or injury suffered by either of the children and both parents shall be at liberty to liaise with the children’s treating professionals;
(b)Notify one another of any appointments for the children with specialist or allied health professionals; and
(c)Keep one another informed at all times of their residential address and contact telephone numbers.
In the event that the parties, or either of them, take up the recommendation of the Single Expert to engage with a mental health professional in order to work on co-parenting, then either parent may provide to that professional practitioner a copy of the Single Expert Report [of Dr I dated 5 April 2016] together with a copy of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym
Macey & Hamilton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 7010 of 2015
| Mr Macey |
Applicant
And
| Ms Hamilton |
Respondent
REASONS FOR JUDGMENT
Introduction
These are competing applications for parenting orders in respect of two boys, B aged six and C aged four.
The parties agree that they should share parental responsibility for the children and that the children should live with the mother.
The matter was heard over the course of three days, concluding within the allocated time.
The Parties
The applicant is the father, aged 38. He is employed in a professional capacity.
The respondent is the mother, aged 42. She is a qualified professional but has not been in paid employment since the first child was born.
The mother has experienced bouts of ill-health since the first child was born by caesarean delivery. Five days later she had emergency surgery for the removal of one-third of her bowel.
In January 2012 the second child was born by caesarean. Two months later the mother fainted, fell and fractured her ribs.
Later that year in December 2012 the mother had a total hysterectomy to minimise future cancer risk.
In April 2014 the mother admitted and discharged herself to and from a Mental Health Unit during a visit to family members in NSW.
The Issues
The issues in dispute were:
a)Should the mother be able to establish a residence for the children in J Town on the north coast of NSW; and
b)Whether the children continue to live in D Town, or move to live in J Town, what arrangements should be made for time and communication between them and the father.
There are also some specific issues about education and medical treatment for B, who was diagnosed at three years of age with Autism Spectrum Disorder (“ASD”). He is assessed to be at the mildly affected end of the Spectrum.
Short History of Relevant Events
The parties met in 2005 while both were working in Melbourne. The following year, the father moved to D Town to take up work. Soon after the mother also moved to D Town to live with him.
In 2009 the parties married.
The children were born in 2010 and 2012.
In May 2013 B was diagnosed with autism.
The parties separated under the one roof, either, as asserted by the mother in March 2014, when she indicated to the father that she wished to end the marriage, or, as asserted by the father, in August 2014, after the mother and children had enjoyed a holiday in J Town NSW.
The parties agree that in October 2014 the mother and the children moved out of the school residence into a property owned by the father and have remained living separately since. After separation the father began spending whatever time with the children could be agreed between the parties.
In April 2015 the mother proposed to the father that she move with the children to the north coast of NSW. The father advised that he did not consent. The issue quickly became contentious.
In June 2015 the parties attended Family Dispute Resolution counselling but have been unable to agree on arrangements.
In July 2015 each of the parties sought an Intervention Order against the other.
In August 2015 both parties withdrew their respective applications for Intervention Orders and entered into mutual undertakings.
On 23 September 2015 the parties reached agreement on a set of interim Orders pending final hearing. Those Orders provided for the parties to have equal shared parental responsibility, for the children to live with the mother and to spend time with the father each Wednesday overnight and each alternate weekend from Friday to Sunday.
The parties have been compliant with those Orders, although changeovers have at time been stressful.
The Evidence
The documents relied on in respect of the application were as follows:
The Father
(a)Initiating Application filed 24/07/2015;
(b)Affidavit of the father filed 12/04/2016;
(c)Affidavit of Ms K Macey, the paternal grandmother, filed 12/04/2016;
(d)Affidavit of Mr L Macey, the paternal uncle, filed 27/07/2015;
(e)Affidavit of Ms M Macey, the paternal aunt, filed 27/07/2015;
(f)Affidavit of Mr N filed 21/09/2015;
(g)Affidavit of Dr O filed 22/01/2016;
The Mother
(h)Amended Response filed 15/04/2016;
(i)Affidavit of the mother filed 13/04/2016;
(j)Affidavit of Ms P Hamilton, the maternal grandmother, filed 13/04/2016;
(k)Affidavit of Ms Q filed 13/04/2016;
(l)Affidavit of Ms R, the maternal aunt, filed 13/04/2016;
(m)Affidavit of Dr O filed 08/04/2016; and
Reports
(n)The Single Expert Report of Dr I dated 05/04/2016.
Oral Evidence
The Father
The father presented as a quietly spoken and contained man. He works long hours in his role.
He has been content for the mother to provide full-time care for the children and he has financially supported the two households for that to happen. The father was also content for the mother to take the lead in arranging for interventions and therapy for B in respect of his autism. The father has had considerable trust and confidence in the mother as a parent.
The point of contention between them has been the mother’s wish to move away to NSW in order for B to attend a particular type of education. He has resisted the mother’s repeated requests for him to also move to that area.
The father is opposed to the relocation for several reasons. Primarily the separation of the children from him and their extended paternal family, and the disruption to their established lives in D Town.
The father was also concerned about the cost of complying with what the mother proposed, which was for him to spend two weekends per month in the J Town area and for the children to return to D Town for half of each school holiday period. He was also quite uncertain about how the parties would afford the fees associated with the private faith-based school, which the mother had nominated as being suitable for B in NSW.
The father is a loving and committed parent; that is the assessment of the mother and accords with my own conclusion.
He has in my view attempted to avoid conflict with the mother over aspects of the children’s health and general care. One example is the diet which the mother requires for both children, but with particular reference to B, which is a restricted one with a strong focus on fresh and uncooked food. Not unreasonably the father said that he had some concerns about the diet and that although both children were healthy, he could not compare what they would have been like without the diet.
It has to be said that the father has not questioned the mother on any of her decisions to the extent that he has not realised that the mother has, at least over the last two years, moved away from medical advice for the children from their general practitioner and paediatrician and towards autism specific advisers and consultants, some online.
The father’s confidence in the mother’s decision making in that regard was probably shaken by evidence in these proceedings, with particular reference to the evidence of both the mother and Ms Q about the involvement of the latter with the family.
The father made appropriate concessions, for instance, that the maternal grandmother was important to the mother and some weight could be given to the mother’s wish to move close by to her. He also said, and I accept, that in the event that orders were made which permitted the mother to change the children’s residence to NSW, that the father would make the effort to see them as regularly as he could.
The proposition was put to the father that the mother was better placed as a parent to decide on the appropriate type of education for the child. Not unreasonably the father said he had knowledge of children in the education system.
The father’s view, simply put, was that there was no need for the mother to take the children 1,600 kilometres away from their current residence when there were many children in D Town on “the spectrum” who attended local schools.
In relation to propositions put to the father that the mother was socially isolated in D Town, the father stated that he did not know who the mother’s current friends were, but that support from his own family for the mother and the children was there “if it’s welcomed, from my family”.
The father was clear to say in answer to my question that he thought changeovers should be conducted by the parents “regardless of the outcome, parents should be able to do it”.
I concluded that the father is committed to co-parenting with the mother as a reflection of his depth of his commitment to the children.
Psychiatric Assessment
The father was assessed by an independent psychiatrist, Dr O, for the purpose of these proceedings.
Dr O read affidavits, interviewed the father and provided a report.[1]
[1] Affidavit of Dr O filed 22/01/2016
Dr O diagnosed the father as follows:
(a)Mixed Anxiety Disorder with features of Social, Obsessive-compulsive and Generalised Anxiety-mild; and
(b)Normal grief reaction.
Dr O also said this, “…I was particularly impressed by the amount of thought [the father] has given to the care of his children”.[2]
[2] Affidavit of Dr O filed 22/01/2016, page 6
He noted the father’s observation that:[3]
… as in most families where one child has a chronic illness and, therefore, requires attention, the other child is relatively deprived and also is expected to follow the same regimes as his older brother.
This was in the context of the social impact of the children’s current diet.
[3] Affidavit of Dr O filed 22/01/2016, page 6
Dr O expressed the opinion that the moderating influence of the father was in the longer term interest of both children. I endorse that observation. The needs of the children are very different and both the father and the paternal grandmother particularly appear to be alert and responsive to that fact.
The Paternal Grandmother
The paternal grandmother is a retired professional.
She has taken a keen interest in the children in a loving, grand-motherly way, but was also able to make close observations of B’s progress in respect of his language and social skills.
She has been involved with the children since the birth of each of them and was observed by the Single Expert to have an especially close and physically affectionate relationship with C. She has been involved with the children, both on overnight stays, pursuant to current interim Orders, and during holiday periods. In her oral evidence she confirmed that she could be involved in changeovers and indeed would do whatever was asked of her to assist the children.
In the witness box the paternal grandmother made an observation of the consequences for B of his autism. She said that B needed to be forewarned of events that were going to happen and that once he was certain, he was fine.
She referred to C as “a tonne of fun”.
Both she and the paternal uncle also referred to the close and affectionate relationship between the subject children and their female cousins of approximately the same age.
I have no doubt that the paternal grandmother is a calm and loving presence for the children and a reliable support to the father.
The Mother
The mother was described by the Single Expert as anxious but contained on the day that she was interviewed by him. That accords with my observation of her in the witness box.
She is a loving, committed mother, the primary attachment for both of the children. The father regards her as a loving and committed parent to the children. That accords with my observation.
The mother told the Single Expert that she is hopeful of undertaking a certificate in autism studies, an on-line course offered by Griffith University. Both parties and the Single Expert agree that the mother has immersed herself in research in relation to autism, “she was extremely well-versed in this regard”.[4]
[4] Single Expert Report dated 05/04/2016 par 44
The mother expressed regard for the father and value for the relationship between himself and the children, “I never wanted them out of their father’s life. I know how my brothers felt when my father died eight years ago”. The mother’s view is that the father would be best advised to move to J Town with her in order to maintain the relationship that he presently has.
Her proposal, in the event that she was able to move with the children and the father remained living in D Town, were two weekends per month from 4.00 pm Friday until 5.00 pm Sunday and half school holidays.
The cost of that exercise in travel, both for the father to J Town and for her in bringing the children back to D Town, had clearly formed no part in her thinking, nor had the school fees of $5,500 per year per child.
When challenged about that, the mother said that if the father was unable to pay the fees she would get a job, but I accept the observation of counsel for the father that she appeared genuinely surprised to be considering the practical aspects of her proposal. The mother stated, “I am fully aware of the gravity of what I am asking”. I am not satisfied that she is.
I conclude that the mother believes that her proposals for a change of residence are so obviously necessary and beneficial for B that all other considerations such as cost and dislocation from current schools, family and friends are minor matters; mere distractions.
My impression is that the mother’s view of the children’s relationship with the father was as an additional source of entertainment, involving sports and outdoor activities such as camping, but not central and crucial to their emotional and psychological development. The evidence does not support those views and beliefs.
I accept the evidence of the Single Expert in respect to the crucial nature of the relationship between the children and each of their parents. They are the two most important people in the lives of these two young boys.
I conclude that the mother now believes that it is crucial to B’s development that he attend T School through a satellite class and is unwilling to consider any other course.
The Mother and Ms Q
Ms Q was recommended to the parents after B’s diagnosis of autism in 2013. It was from Ms Q that the mother learned about the satellite program for autistic children where a very small group, perhaps five children, would be taught by teachers trained in dealing with autism, with a view to reintegrating them into mainstream schooling when they had completed the education process within a small group.
The mother was cross-examined in relation to her recent involvement with
Ms Q. This was in the context of the mother’s case opening with a submission that the report annexed to the affidavit of Ms Q was really that of an expert witness and that her evidence should be regarded as such. This course was opposed by the father on good grounds subsequently revealed.
The mother expressed a warm appreciation of Ms Q, “I call upon [Ms Q] for everything”. She denied that a friendship had formed between them, “We don’t see each other as friends; just a warm relationship has developed”. The mother was not candid about that. The evidence of their correspondence suggested otherwise.[5]
[5] Exhibit 2 and 3
Once this litigation began, Ms Q became involved in assisting the mother to generate helpful evidence for these proceedings.
Inadvertently, the mother provided to the father C’s iPad with email and text exchanges between herself and Ms Q. Those notes reveal collusion between the two women in order to alter notes taken of any observation at school where the mother, Ms Q, the headmaster and B’s class teacher were present. Ms Q was willing to lend her notes to the mother so she could use them to write her affidavit. As was drawn to the attention of the mother, there were messages followed by personal greetings and symbols for kisses (“xxx”) at the conclusion of the messages.
When Ms Q was cross-examined many more messages, much more effusive, came to light, but at the time when the mother gave evidence, she stoutly denied that there had been any lapse from professional conduct by
Ms Q. Indeed she became quite vehement and indignant altering her speech pattern to pronounce each work separately, at a slightly slower pace, apparently so that the questioner would understand.
In fact, Ms Q saw very little of B after the initial meetings and the occasions referred to in the financial records of Ms Q.[6] The meetings which took place after the commencement of litigation were really directed to identifying deficiencies in B’s education in D Town in order to promote the mother’s desire to move.
[6] Exhibit 2
Having later heard from Ms Q, and read the exchanges between herself and the mother sought to be concealed, I conclude that the mother did not answer candidly.
The intense involvement of the mother with Ms Q and the warm personal support given by Ms Q for relocation to NSW were unknown to the father, who had continued to believe that there was a professional engagement between Ms Q and himself. If the mother realised that in taking up
Ms Q as an ally in her dispute with the father she had betrayed the father’s trust in both her and in Ms Q, she did not acknowledge it.
The mother said this, in a tone of patient condescension, “If you understood autism you would know how complex and difficult this is and it becomes warm”. No doubt that is so. Arguably that warmth could be a benefit to an intact family. That is not the case here.
What the mother did not refer to were the conversations between herself and Ms Q in relation to preparation for this case. The mother had asked for, and been given, Ms Q’s notes of a meeting at school to use in the mother’s affidavit. Either the mother herself, or her solicitors on her instruction, supplied Ms Q with the report of the Single Expert which they discussed.
Her conduct suggests that the mother has become isolated and single-minded in her thinking. I consider that it is more likely that the mother has in the ordinary way been a straight-forward and honourable person. I cannot be certain about that, but the father’s past trust and confidence in her suggests that it has been so.
There are other aspects for concern.
U Centre
The mother agreed that the children no longer saw their former general practitioner in D Town and no longer saw a paediatrician, advising that B had not seen her because he “no longer needed to”.
The mother has gone about consulting others. A developmental assessment report was produced including Wechsler pre-school and primary school testing (WPPSI-1V) in October 2015.[7] The mother has also engaged an organisation titled “U Centre – Dr H & Associates” in Queensland. A report dated 9 June 2015 from that centre started with this statement, “I am currently seeing B as a patient in my nutrigenomic clinic”.[8]
[7] Affidavit of the mother filed 13/04/2016, Annexure JMH-4
[8] Affidavit of the mother filed 13/04/2016, Annexure JMH-2 (page 47)
Dr H did not give evidence. The mother found Dr H on a website, was forwarded a DNA swab kit and returned it. In fact Dr H has never seen B. A DNA swab was taken and forwarded and a so-described genetic profile was formulated and a diet prescribed and monitored all online.
There seems little doubt that the mother is focused entirely on looking for any course of action or treatment that will assist the child and promote his development. It may be that not all of her choices have been people who are soundly based. I am not in a position to comment on that.
However, both parties have agreed that they are content to return to a paediatrician where issues of treatment, therapy, diet and the significance for B of Vitamin D can be discussed and advice implemented.
Residence in J Town
The mother’s plans, if she were to go to J Town, were that she would live with the maternal grandmother “at least initially.” This course has its own evident risks.
The maternal grandmother sold her property in D Town last year and moved to J Town. She is staying with a family friend of long-standing, aged in her eighties, and that friend’s daughter. Neither of them gave evidence, but there is no dispute that they are old friends of the mother’s.
The maternal grandmother is not sure how long she will remain with them. She is sure that she does not wish to return to D Town. The mother is not sure how long she would stay in that household and whether or not the maternal grandmother might come to live with her and the children if she moved out into rented accommodation.
There was no certainty or practicality about the plan in terms of location and whether or not it was affordable. The implications for both children in terms of more than one disruption of their residence appeared lost on the mother.
Schools
The mother conceded that she had selected, and the father had agreed to, the school which B currently attends in D Town. I note that it is not the school that was nominated in the consent Orders made in September 2015.
I take from this that in the event the mother became dissatisfied with T School, or learned of a school which might be better in her view, there is a possibility that she would again change B’s school, as she wishes to do away from E School.
The mother is currently quite dissatisfied with B’s class teacher, although no formal complaint has been made. She stated, “Given the evidence of the teacher, I have great concerns about whether she is meeting B’s needs”.
B’s class teacher was interviewed by the Single Expert. She has been a school teacher for 10 years and has experience teaching children with ASD. Significantly she reported that:[9]
… the child will not qualify for funding for a dedicated classroom aide because (a) … his verbal skills were advanced … (b) his intellectual functioning was not impaired - indeed the opposite, and … (c) he does not show behavioural difficulties - his behaviour is “not an issue”.
(Emphasis in original).
[9] Single Expert Report dated 05/04/2016, par 97
The teacher also said that it had been the mother, not the school, that had recommended that B be collected early on some days. She also reported that she did not see anxiety in B in the way that the mother “assured her” that she saw at home.
The teacher also raised the mother’s habit of bringing the child into the classroom, “[the mother] looks more anxious than he does”.[10] The teacher expressed the view that a quick drop-off would be preferable. She also doubted the need for the noise cancelling headphones with which the mother provided the child.
[10] Single Expert Report dated 05/04/2016, par 101
It is apparent that the mother was affronted by the teacher’s views expressed to the Single Expert.[11] I also conclude that the mother regards herself as being better qualified to decide those issues than the teacher.
[11] Single Expert Report dated 05/04/2016, pars 95-106
It is not a matter for me to determine if all or any of those things are appropriate. The parents could take up the advice of the Single Expert to have an appropriate clinical psychologist design a program for B to test various courses of action for maximum benefit.
It is of some concern that the mother was severely impacted by the release of the Single Expert Report. In her affidavit she said that she had travelled to NSW to spend time with family members noting that “the release of the [Single Expert] report prepared … had severely impacted on me”.[12]
[12] Affidavit of the mother filed 13/04/2016, par 184
She attended a doctor near her sister’s home, continued to feel overwhelmed and went to the local hospital. She spoke to a psychiatrist there who prescribed medication and recommended that she return home to rest. The following day the mother became again overwhelmed, “I felt panicked and unable to calm myself”. She returned to hospital and was assessed by a mental health nurse who suggested that she admit herself to the Mental Health Unit for a few days’ rest. The mother subsequently discharged herself with the support of the hospital on the basis that she would receive better assistance with the support of her family.
There is no evidence to suggest that the mother is mentally ill; her evidence rather suggests that she was both confronted and affronted by the content of the Single Expert Report.
I conclude that the mother was doing her best to tolerate the legal process but revealed her view that nobody, including the father, understood the significance of what she wanted to do for B.
I certainly formed the impression that the mother believes that if the father was a truly loving parent he would fall in with her plans and move to J Town. It is also likely that she believes that his decision not to do so reflects indifference to the child’s needs.
I conclude that the mother does not have an objective sense of the impact on both the children and the father of the intensity of her focus on B, however well intentioned.
Psychiatric Assessment
On 3 December 2015 the mother was assessed by the same psychiatrist as the father, Dr O, for the purpose of a single expert report.[13]
[13] Affidavit of Dr O filed 08/04/2016, page 6
He assessed her as follows, “… mild Anxiety Disorder with features of Social, Obsessive-compulsive and Generalised Anxiety”.
Dr O also said this:[14]
[The mother] recognises her tendency to perfectionism, also her wish to care for others and she sees herself as having lacked self-care, even after the separation feeling that she was too attentive, particularly to [the father] but also to the children.
[14] Affidavit of Dr O filed 08/04/2016, page
Dr O gave his opinion that the mother presented as a very determined person, causing him to “put boundaries” around parts of the conversation.
I endorse these observations. The evidence before me is of the mother’s heartfelt wish to have the very best for the children, particularly B, and to pursue, over the opposition or doubt of the father, what she thinks constitutes the very best. In my view, that behaviour is consistent with the assessment and opinion of Dr O.
There is a benefit to the children from the unwavering support of the mother, but there is a risk to them that she will disregard, in an unconsidered way, the views of those who challenge or disagree with her, particularly the father.
The Maternal Grandmother
The maternal grandmother is a widow, her husband having died approximately eight years ago. She and her husband had previously run businesses together.
She moved to live in D Town near the mother and father in February 2010. She brought the property as a short-term investment with a view to completing the renovation required as a project. She did not intend to move to D Town permanently, but to provide support to the mother and her family in raising the children.
On 7 November 2015 the maternal grandmother sold her two properties in D Town and moved to J Town. She understood at that time that the mother may or may not be able to move to live in the same town. I infer that she assumed the mother would be able to manage in her absence if she was not permitted to go.
Certainly, her oral evidence is that in the event that the mother was remaining in D Town, she herself would not be returning there to live. Her intention is to go back and visit if that is the case and would stay to help her out to the best of her ability. She has also from time to time travelled to stay with other family members to assist them.
The maternal grandmother was feeling overwhelmed by the conflict between the parents. My impression is that the maternal grandmother found these proceedings, and the breakdown of the mother’s marriage, immensely stressful and has moved to J Town, which is the area she lived in when first married with young children herself, for support and comfort from old friends.
Ms Q
Ms Q is a self-described “Early Childhood Educational Consultant”. She has been providing advice to the parties in relation to the diagnosis of ASD for B since June 2013.
Ms Q provided an affidavit, annexing a variety of documents, which taken together with her oral evidence in cross-examination, reveal misleading and unprofessional conduct by her.
Ms Q is qualified as a teacher. She has a Diploma of Teaching (Early Childhood) and a Bachelor of Education (Early Childhood). She taught in
pre-schools and kindergartens between 1978 and 1994. In 1995 she ceased teaching and took on various roles, initially with the Department of Human Services.
In 2000 she became involved in an early childhood and therapy team (V Services). In 2003 she obtained a Diploma of Business. With that additional qualification she became the client services manager of the V service. In 2008 she established a business as a “speaker/trainer/facilitator and consultant”. In 2009 she completed a Cert IV in “Workplace Training and Assessment”. In that same year she began as a private contractor with an organisation called “W Org”[15] and described herself as an “Early Childhood Educational Consultant (Autism Specific)”.
[15] Apparently a private company
There is no evidence before me to establish that Ms Q has specific education training and/or qualification in relation to autism. In 2012 Ms Q commenced a Master’s Degree in autism studies. At the time of trial the course work for that degree was yet to be completed.
It is against that background and history that I have considered the involvement of Ms Q with these parties.
In June 2013 Ms Q began advising the parties and treating B, who had been diagnosed with ASD in April of that year. A report and service plan was brought into existence. She advised at times of transition, such as cot to bed, starting kindergarten and starting school. The majority of contact was between the mother and Ms Q. However, both parties were pleased for her to be involved and open to her advice.
In October 2014 the parties separated. In July 2015 this litigation commenced.
Ms Q acknowledged in the witness box that she failed to acknowledge to the parties or to herself the significance for the child of those events.
Ms Q allowed herself to be drawn into this litigation. She acknowledged in the witness box that she had become aligned with the mother. She selectively removed, or did not include, text and email correspondence in the file which she produced in response to a subpoena.[16] She read the report of the Single Expert, without leave of the Court, and referred to it as “rubbish”.
[16] Exhibits 2 and 3
I conclude that in her willingness to support and assist the mother she lost all focus on the child.
She said this in relation to B, “It requires a great deal of extra effort and patience to support B’s high level of anxiety caused by his ASD”. Ms Q is not a clinical psychologist nor is she medically qualified to diagnose anxiety. More importantly, she attributed his “anxiety” to his condition, without consideration of any other cause. There is no reference to his social context of having separated parents involved in Court proceedings. Both parents have themselves been diagnosed as anxious, although Ms Q may not have been aware of that.
Ms Q alerted the mother to the concept of satellite classes for ASD children conducted in NSW through an organisation known as “Aspect”.
On 17 March 2016 there was a parent support group meeting with the principal, B’s teacher, both the parents, Ms Q and a minute taker. Ms Q and the mother were collectively unhappy with the notes taken by the school. They colluded to produce their own minute of the meeting.
I conclude that the mother and Ms Q were united in their desire to discredit or at least criticise the experience of education B is presently receiving. The father was unaware of this manipulation of the process.
On 12 April 2016 Ms Q went to B’s schools to observe B at school in the classroom. I conclude that the purpose this exercise was to generate evidence for these proceedings.
Ms Q was critical of B’s class teacher in many respects. She referred to her as “[Ms X]” throughout her report, in what I conclude to be a deliberately disrespectful way.
Ms Q swore her first affidavit in September 2015 and her second affidavit, which was relied on in these proceedings, in April 2016.
I conclude that the purpose of her involvement was to support the mother in obtaining her goal of moving to J Town in NSW. She misrepresented herself as a dispassionate professional adviser.
During cross-examination Ms Q was compelled by the Court to leave the witness box to retrieve her mobile telephone. On the balance of probabilities I believe it is more likely that she chose not to bring the mobile telephone for fear that her text and email exchanges with the mother would be revealed.
Ms Q was defensive and evasive as a witness. It was only after production of that mobile telephone that Ms Q ceased protesting her professionalism and conceded the lack of it. The many messages which led to her concession of having acted unprofessionally included a reference to the Single Expert report being “awful” and ended with:
I will think about it … it is awful and there is no softening of this but you need to hang in there somehow and we need to work out the next strategy.
Thinking of you
([Ms Q]) xx
In cross-examination, before Ms Q became aware that she would be compelled to produce her mobile telephone, she was asked about the mother having put kiss symbols at the end of messages to her. She said this, “I haven’t sent a kiss but I’m the professional within the relationship with the mother and the father”. I am satisfied that the Ms Q lied to cover her own position with that answer.
In the circumstances where the father has lost confidence in Ms Q, and to some extent in the mother as a result of that situation, it should not be the case that Ms Q conducts therapeutic interventions for B without the prior consent of the father, or perhaps at all.
The Single Expert
The evidence of the Single Expert, both in his report and orally, was detailed, careful and of great assistance to the Court.
He expressed the view, which I accept, that there would be an adverse impact on the children from being moved away from the father primarily and other relatives in D Town and for B to be taken out of his current school in the hope that a different school would be more productive for him. He said this:
‘Aspect’ runs out of a mainstream school. There is a separate classroom embedded within a school with five students. They are taught by teachers with special training in autism. The goal of the program is to reintegrate students into mainstream education. That speaks to the importance of a child being in mainstream schools.
The proposition was put to Single Expert that B, without the educational tools that such a school system could provide, would flounder. He disagreed. He said that in B’s case the four elements of support which would predict a child doing very well were all present:
a)He had parents interested, intelligent and informed about his condition;
b)There had been an early assessment of him (aged three);
c)There are number of clinical practitioners involved; and
d)Finally, the school he attended had a history of developmental studies for children with a condition such as his.
He regarded that as a “deck-stacked” very much in the favour of doing well, not just surviving, but doing well. He also referred to his own observation of the child as mildly affected by autism; not severely autistic.
The Single Expert was clear to say that it was not part of his evidence that the program, focused on by the mother, was not a good program. Rather what he was saying was that by withdrawing the child from the social setting, with the strength it had, to put him in a setting with other autistic children was taking an unnecessary risk. The preferred course in his view would be that every effort was made to support the child’s current education, including the development of a program by an appropriately qualified psychologist to trial and assess before considering making any other move.
Significantly, the Single Expert said that even if the relevant school and program were available in D Town, he would not recommend moving B immediately into that school and program.
His ultimate recommendation was that the children remain in D Town, that the maternal grandmother return to D Town to support the mother, and that the parents work on their co-parenting with the support of a mental health professional. He identified the benefits to both children of that arrangement being that their current environment and relationships were preserved, that they were spared the burden of re-settlement and disruption, that they were spared separation from the father and other family relationships, that the mother would have the ongoing support and assistance of the maternal grandmother, and that the parents would have professional support to assist them to be co-operative parents for the benefit for the children.
The Single Expert also set out a possible parenting schedule to develop to an extended weekend and an additional overnight. The children are presently in the pattern of spending Wednesday nights with the father and alternate weekends.
I agree that the current pattern is consistent with their needs until C starts school next year. In view of B’s dislike of unexpected change, time should continue in the present pattern, developing into a block of time from Wednesday to Sunday each fortnight and in addition the other Wednesday overnight.
The parents are substantially in agreement about how to arrange holidays and other special times and in my view will be able make adjustments to orders made without too much difficulty.
The Law
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
Both parents acknowledge that the children have meaningful relationships with both of them and that there is no need to protect the children from physical or psychological harm.
These children have not been exposed to abuse, neglect or family violence, although there were mutual Intervention Orders which were withdrawn.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views and the nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
B is just six years old. He was assessed as an intelligent and perceptive
five-year-old by the Single Expert. He engaged well in interview and although he struggled with comprehension of questions of an abstract nature, he was able to understand what was asked of him. His behaviour is reported as having been age appropriate, not unruly or emotionally dysregulated. B spoke affectionately of both his parents, of his paternal grandparents and of times that he and his brother had spent both with the mother and father.
C, aged four, revealed his feelings by the warmth and ebullience of his affection for both parents and his family, especially the paternal grandmother.
The children are too young and insufficiently mature to understand the impact on them of moving away from D Town and only seeing the father on an irregular basis. The evidence of the Single Expert is that the children are securely attached to both parents.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
Both parents have participated in making decisions about major long-term issues, with the father very often deferring to the mother.
It will be important in the future for each parent to independently consider the merits of any course to be taken, in consultation with any medical or other expert involved in the lives of the children.
Both parents have spent time and communicated with the children.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
The father has amply provided financially for the mother and both children and is likely to continue to do so.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
The impact on the children of being removed from their current residence and school and connection with the father and paternal family is considerable.
The children suffered the breakdown of their family in October 2014, but after a period of uncertainty of some months, settled into a pattern of seeing the father. They have enjoyed that regular time and look forward to it continuing, particularly with outdoor physical and sporting activities.
The Single Expert highlighted the significance of research that where both parents are competent to do so, they should have the maximum involvement in all facets of their children’s lives. The mother’s proposed move would effectively exclude the father from the day-to-day lives of the children. He would only see them in a holiday setting and would not be involved in their education.
B is in Prep this year and doing well according to his teacher. The Single Expert strongly recommended maintaining B in mainstream education in his current school, enhanced by a personalised program designed by a clinical psychologist, if that could be put in place.
The practical difficulty and expense of a child spending time with and communicating with a parent
The mother’s proposal would involve the children being 1,600 kilometres away from the father. For the father there would be travel from D Town to the airport on Friday night, a flight to D Town airport, and some travel to wherever the mother was living. It makes weekend time impracticable and expensive. Even one-week holiday periods will be a considerable journey.
The mother proposes time in every school holiday period. This is likely to become burdensome, both for her and the children, who would be deprived of the opportunity to spend time in their local community with friends and relatives during those holiday periods.
There are school fees associated with the mother’s proposal. There is no obvious means for school fees and associated expenses to be paid year by year. The mother had given no thought to who would pay the fees.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
Each of the parents has a very well developed capacity to meet the needs of the children, including their emotional and intellectual needs.
They are both alert to the special needs of B.
The father is more conscious of C’s needs and differences.
Each of the parents has been diagnosed as anxious; that illness aggravated by their separation.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The children are boys aged six and four.
B is diagnosed with autism, on the mild-end of the autism spectrum. Consideration and assessment for B has been ongoing since his diagnosis.
C is a healthy, well-developed child, with affectionate relationships within his family.
There is occasionally conflict that flares up between the two brothers, which is managed by each parent in their own way.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
The mother has taken on the responsibility of promoting the best outcome for B, but may have become resistant to accepting advice which does not accord with her own views. One example of this is that she has become critical of B’s class teacher because they have different views on how B should be managed, both in the classroom and for collection and delivery. The mother does not seem able to accept that B may behave differently and be less anxious in the classroom than he is at home or that she believes him to be at school.
The father has taken up the responsibility of parenthood by providing well for the children and respecting the mother, but may need to become more actively involved in decision-making for them.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
There have been Intervention Orders which were mutually withdrawn.
The history of the relationship is one of episodes of frustration at times.
Both parties opened their cases on the basis that family violence was not an issue in these proceedings.
Any other fact or circumstance that the court thinks is relevant
It is not a matter for the Court to assess which school B should be attending. This is a larger issue of balancing the risk of the losses the children would experience if the mother’s proposal to move them to northern NSW was granted.
Conclusion
I conclude that the relationship between the children and the father would be diminished by a change of residence. They would not see him in a normal household setting at all and the ability to see him, other than in school holiday times, is likely to be limited by the length and cost of travel.
The children would lose contact with their paternal family, particularly the paternal grandmother and their same-aged cousins, who would be occasional visitors, rather than the regular play-mates they presently are.
B would lose the security of his place in a classroom in a school chosen by the mother and endorsed by the father, where the school is aware of his autism and supportive of him. C would lose the opportunity to progress onto school next year, familiar to him already from his brother’s attendance there.
No part of the mother’s proposal has any particular reference to C and to some extent the move would sacrifice his interests to B’s. However it has to be said that in the event the mother’s proposal was accepted by the Court as promoting the best interests of B and not being detrimental to C, it is likely that those orders would have been made. That is not the case.
I take into account the evidence of the Single Expert that the focus should be on keeping B in the mainstream education he is already a part of and working on additional support, if that is what is needed, in order to maintain the benefit of maintaining the stability of the life that is in place for both children in D Town.
On that basis I have made Orders that the children remain in D Town, with the mother, the mother having been clear to state that she would continue to live in D Town if she were not permitted to establish a residence for the children elsewhere.
Once C has started school in 2017 orders provide for an increase of time with the father, consistent with the current pattern. The children will be collected by the father every Wednesday, one week overnight, one week until Sunday evening. B’s need for predictable arrangements has informed those Orders which should also work well for C.
For the benefit of both children the mother will be required to stay away from school changeovers in order to lower the emotional intensity of leave taking and to be consistent with the drop off rules for the other children.
There are also orders for the children to attend on certain practitioners, and for both children to attend at the current school, unless otherwise agreed in writing.
It is a finely balanced case but the benefits to both children of remaining in D Town and maintaining their relationship with both their parents closely involved in their day-to-day lives, outweighs the possible benefit of a move to J Town to a new school which might or might not provide B with a better educational outcome.
Orders are made accordingly.
I certify that the preceding one hundred and eighty nine (189) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 2 May 2016.
Associate:
Date: 2 May 2016
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Remedies
0
0
1