Maddock and Caffyn
[2008] FMCAfam 1221
•11 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MADDOCK & CAFFYN | [2008] FMCAfam 1221 |
| FAMILY LAW – Parenting orders – competing “live with” applications – child’s wishes – impact of prescription medication on parenting capacity – competing parenting styles – injuncting Wife from moving from her parent’s home – ordered child live with the Wife and spend substantial time with the Husband. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA |
| Applicant: | MR MADDOCK |
| Respondent: | MS CAFFYN |
| File Number: | DGC 2457 of 2007 |
| Judgment of: | Bender FM |
| Hearing dates: | 10 & 11 November 2008 |
| Date of Last Submission: | 11 November 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 11 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dowler |
| Solicitors for the Applicant: | Robin Harrison & Associates |
| Counsel for the Respondent: | Ms Swart |
| Solicitors for the Respondent: | Waters Timms Pty Ltd |
| Counsel for the Independent Children’s Lawyer: | Ms O’Connell |
| Solicitors for the Independent Children’s Lawyer: | Robert Halliday & Associates |
ORDERS
All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the child of the relationship, [X] born in 1999 (“[X]”).
[X] live with the Wife, subject to and conditional upon the Wife and the child residing with the Maternal Grandparents until such time as the Wife’s common law WorkCover claim has been finalised.
[X] spend time and communicate with the Husband as follows:
(a)each alternate weekend from 6.00 pm Friday to before school Monday, or before school Tuesday in the event the Monday is a public holiday, commencing on Friday 12 December 2008;
(b)from after school Wednesday to before school Thursday in each week, commencing 17 December 2008; and
(c)as otherwise agreed between the parties.
The Wife forthwith do all things necessary to authorise solicitors instructed by her for the purpose of her common law WorkCover claim to notify the Husband upon finalisation of her claim within seven days of such finalisation.
For a period of five years from the date of these orders, the Wife is restrained from attending upon any medical practitioner other than
Dr S (“Dr S”), or such other doctor at [C] Medical Centre for medical treatment, unless so directed or referred by Dr S to attend upon such other medical practitioner or specialist.
The Wife only take such prescription medication of the type and in the quantities as prescribed by Dr S or such other medical practitioners to whom she is directed or referred by Dr S.
Within 14 days, the Wife authorise and direct Dr S to:
(a)do all things necessary to put in place such arrangements and controls as are available to him to enable him to be advised in the event that the Wife is prescribed or issued with any drugs other than those prescribed by him or by such other medical practitioners to whom she has been referred by him; and
(b)to notify the Husband in the event of a breach of orders 6 and 7 coming to his attention, or in the event he is of the view that she is unable to appropriately care for [X].
Within 14 days, the Independent Children’s Lawyer provide to
Dr S a copy of these orders and reasons for judgment, together with a covering explanatory letter.
Within 14 days, the Wife is to do all things necessary to obtain a referral to, and thereafter attend upon, a counsellor to seek assistance in relation to the emotional dependency she has on [X], and shall provide to that counsellor a copy of the Family Report of Matthew Saunders and a copy of these orders.
The Wife forthwith shall do all things necessary to ensure that [X] attends upon Centres Against Sexual Assault (“CASA”) for counselling to assist [X] with any issues arising from the sexual assault of her by her half-brother, [Y], and to continue such counselling as directed by CASA.
BY CONSENT:
[X] spend time with and communicate with each parent in holidays and on special days as follows:
(a)with the Husband for half of all term school holiday periods at times to be agreed between the parties or failing agreement for the second half of each school term holiday period from 5.00 pm on the middle Saturday to 5.00 pm on the last Sunday, and with the Wife for the other half of the holidays;
(b)with the Husband for half of the long summer vacation at times to be agreed between the parties or failing agreement in the second half of such school holiday period ending at 5.00 pm on the Thursday before school recommences and with the Wife for the other half of the holidays (subject to the Christmas arrangements);
(c)if not otherwise with the Husband, from 10.00 am until 5.00 pm on Father’s Day;
(d)if not otherwise with the Wife, from 10.00 am until 5.00 pm on Mother’s Day;
(e)in the event that [X]’s birthday falls on a non-school day, then with the Husband from 10.00 am to 2.00 pm and with the Wife from 2.00 pm to 6.00 pm;
(f)in the event that [X]’s birthday falls on a school day, [X] spend from the conclusion of school to 5.30 pm with the parent she is not living with;
(g)with the Husband from 4.00 pm on 25 December until 4.00 pm on 26 December in 2008 and each alternate year thereafter (and [X] spend time with the Wife from 4.00 pm on 24 December until 4.00 pm on 25 December in 2008 and each alternate year thereafter);
(h)with the Husband from 4.00 pm on 24 December until 4.00 pm on 25 December in 2009 and each alternate year thereafter (and [X] spend time with the Wife from 4.00 pm on 25 December until 4.00 pm on 26 December in 2009 and each alternate year thereafter);
Until further order or as otherwise agreed between the parents in writing, each of the parents be restrained from bringing [X] into any form of contact with [Y] born in 1992 or permitting any other person to do so.
IT IS NOTED that publication of this judgment under the pseudonym Maddock & Caffyn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGC 2457 of 2007
| MR MADDOCK |
Applicant
And
| MS CAFFYN |
Respondent
REASONS FOR JUDGMENT
Introduction
At the commencement of proceedings, the Husband sought orders that the child [X] born in 1999 (“[X]”) live with him and spend time with the Wife each alternate weekend, half holidays and special occasions. At the conclusion of the hearing, the Husband “amended” his proposals in relation to the time [X] spends with the Wife to each alternate weekend from 6.00 pm Friday to before school Monday and from after school Tuesday to before school Wednesday each week as well as holiday time and special days.
At the commencement of proceedings, the Wife sought orders that [X] live with her and spend time with the Husband each alternate weekend from 6.00 pm Friday to 5.00 pm Sunday, half school holidays and special days. At the conclusion of the hearing, the Wife “amended” her proposals in relation to the time [X] spends with the Husband to each alternate weekend from 6.00 pm Friday to before school Monday and from after school Wednesday to before school Thursday each week as well as holiday time and special days.
At the conclusion of the hearing, the parties prepared a “Minute of Agreed Orders for holidays, special days and specific issues” to be applicable irrespective of which parent [X] lives with. Orders in the terms of that document will be made by consent as part of the orders.
Background
The Husband was born in 1963 and is 45 years of age. He is employed on a casual basis as a [omitted] and is currently undergoing training to assume a full-time management role at [omitted].
The Wife was born in 1971 and is 37 years of age. She is in receipt of a Disability Pension/WorkCover arising from a debilitating back injury sustained whilst working as a [omitted].
The parties commenced a de facto relationship in December 1998, married on 16 March 2002 and separated on 26 January 2006.
The Husband has three older children from a previous marriage, [K] aged 20, [B] aged 18 years and [J] aged 15 years.
The Husband lives with his de facto partner, Ms B and her three children, [N] aged 14 years, [R] aged 10 years and [Z] aged 9 years. [B] also lives with the Husband. [K] and [J] spend regular time with the Husband.
The Wife has two children from her previous marriage, [Y] aged 16 years and [L] aged 13 years. They live with their Father.
After separation, the parties reached agreement between themselves that [X] live with the Wife and spend alternate weekends and holiday time with the Husband.
In June 2007, [X] told [J] that [Y], who at that time was living with [X] and the Wife, made her touch his erect penis. This was reported to the police by the Husband and in interview, [X] revealed [Y] had also touched her vagina. [Y] was charged with two counts of assault arising from this and pleaded guilty in the Children’s Court. He was to be sentenced in late November 2008.
When advised of the assault, the Husband did not return [X] to the Wife’s home and brought an urgent application to this court seeking orders that [X] live with him. He enrolled [X] in the primary school local to him and Ms B. [X] only had telephone communication with her Mother.
On 23 July 2007, Federal Magistrate Phipps made interim orders that [X] live with her Mother and spend alternate weekends and each Thursday evening with her Father. The Wife was restrained from allowing [X] to spend time with or communicate with [Y].
In September 2007, further orders were made by Federal Magistrate Phipps for [X] to spend time with the Husband each alternate weekend. Orders were also made for the preparation of a Family Report, a Psychiatric Assessment of the Wife and for the Wife to undergo random supervised drug screens within 24 hours of such a request being made by the Independent Children’s Lawyer.
In May 2008, the Wife and [X] moved in with the Maternal Grandparents when the Wife could not afford the increased rental on her then home. She and [X] continue to live with the Wife’s parents.
Husband’s proposals
The Husband seeks orders that [X] live with him and spend alternate weekends from 6.00 pm Friday to before school Monday and from after school Tuesday to before school Wednesday each week with her Mother as well as agreed holiday and special occasion times.
The Husband would prefer that [X] attend [D] Primary School which is the primary school nearest to his residence and where Ms B’s children attend school. [X] was enrolled there for the six weeks that she was living with the Husband and Ms B after the disclosure of the assault upon her by [Y].
[X] currently attends [C] Primary School and the Husband indicated that he would be prepared for her to continue at that school if that was ordered by the court.
The Husband is genuinely concerned about the level of care [X] is receiving from her Mother. The Wife sustained a back injury in 2004 and is on very high levels of medication to manage her pain. She also suffers from depression and is on medication to manage this condition as well. The Husband believes that she is abusing her prescription medication and the effect of this is that she falls asleep for very long periods during the day and is therefore unable to care for [X]. The Wife’s intake of subscription medication will be explored in greater detail later in this judgment.
The Husband is also concerned about the Wife’s mental health as there have been three instances of hospitalisation arising from attempted suicide and breakdown.
The Husband also raised serious concerns as to a lack of personal hygiene for [X]. She has had an ongoing problem with headlice for the whole of this year which he says he and his partner have tried to treat when she is with them, but which he believes goes inadequately treated when with her Mother. Hence the difficulty in being able to eradicate the problem for [X].
The Husband was also concerned about [X]’s cleanliness. It was his evidence that when they collect her for her time with them, she is dirty, as are her clothes. His evidence was that [X] told him she did not shower regularly in her Mother’s home and he was of the view that her dishevelment was not reflective of a hard day’s playing at school but was indicative of someone not washing regularly.
The Husband was also most concerned about the lack of any structure or supervision for [X] in the Mother’s home. His evidence was that [X] had told him that she was allowed to stay up very late, even on school nights and that therefore she was often tired when she went to school.
The Husband was also concerned that [X] had recently been placed by the Wife into after-school care. As the Wife is currently not working, he believes there is no reason that [X] cannot go straight home after school and that this is a further reflection of the Wife’s inability to care for [X].
It was the Husband’s evidence that, whilst he had some concerns about the Maternal Grandparent’s home, and in particular the level of arguments between them (the Maternal Grandparents are separated under the one roof and occupy separate bedrooms), he was of the opinion that the care of [X] had improved since she and her Mother moved in with the Maternal Grandparents. In particular, he thought that [X] was being better fed, was getting to and from school on time and had additional adult back up in the event of the Wife being affected by overusage of prescription medication.
The Husband lives in a modern five-bedroom home with his partner, her three children and his eighteen year old son who has just finished VCE. It was the Husband’s evidence that he believes his son will shortly move out to commence living independently. When [X] is with them, she shares a bedroom with [Z]. It is his evidence that [X] and the children get on very well, though of course there is the usual ups and downs that occur in any children’s relationships.
The Husband believes that he and his partner can provide [X] with a safe, secure, structured and stable homelife, and can better support her to achieve and to be a child.
Evidence of Ms B
Ms B also raised concerns about [X]’s lack of hygiene, the headlice, her exposure to her Mother’s overuse of prescription medication, the lack of structure in [X]’s Mother’s household and the material that [X] is exposed to by her Mother. By way of example of the inappropriate material, she referred to an image of a male model that was sent to [X] via email by her Mother when she was at her Father’s home.
Ms B, who works as an [omitted], presented as a loving, competent and organised busy Mother of three, in a household that can comprise of up to seven children if all of Mr Maddock’s children are visiting.
There was a clear difference in parenting style, lifestyle and values between herself and Ms Caffyn. It was apparent she genuinely believed that [X] would be better cared for in her household.
It was also apparent that Ms B had exposed [X] to some of her negative views of Ms Caffyn’s life choices and lifestyle. She conceded that these negative views of her Mother would make [X] uncomfortable.
Wife’s proposals
The Wife proposes that [X] live with her and that she spend time with the Husband each alternate weekend from 6.00 pm Friday to before school Monday and from after school Wednesday to before school Thursday in each week as well as agreed holiday and special occasion time.
It was the Wife’s evidence that she was hoping to move with [X] from the Maternal Grandparent’s home, but that her parents had indicated to her that she and [X] were welcome to remain living with them indefinitely.
The Wife indicated that she would be prepared to continue living with the Maternal Grandparents with [X], if that were a condition of any orders that [X] stayed with her, but that this not be a long-term requirement.
Wife’s prescription drug use
It was the Wife’s evidence that she is currently being prescribed the following medication:
a)Paroxetine – Anti-depressant – x 3 per day (5 mg);
b)Serequel – Anti-depressant – x 2 (300 mg at night);
c)Diazepam;
d)Temazepam;
e)Oxycodone Hydrochloride;
f)Quetiapine;
g)Sumarate;
h)Codeine Phosphate with paracetamol; and
i)Panadeine Forte.
It was the Wife’s evidence that she recently received a small payout from WorkCover. She used that to take a holiday in Bali. It was her evidence that whilst away, she did a lot of soul-searching and realised she needed to take control of herself, and in particular her injury and its pain management.
Upon her return from Bali, the Wife gave evidence that she stopped taking all painkillers whatsoever, save and except for Panadeine Forte. At the time she gave her evidence, she had not taken any painkillers for some two and a half weeks, save for up to eight Panadeine Forte per day. She said she was managing well.
She had taken this decision without any consultation with her treating general practitioner, Dr S, though said she was going to discuss this decision with him at the appointment she had with him the following Tuesday.
The Wife conceded that historically she had “doctor-shopped” in order to obtain additional prescriptions for her medication, but that this practice had ceased. It was her evidence that she had developed a relationship with the [D] SuperclinicPharmacy, and it was to them that Dr S directly sends her prescriptions. She attends upon the pharmacy each Wednesday and they make available to her, her medication for the next seven days. It was her evidence that this prevented her from the overuse of her prescription medication.
The Wife’s PBS patient summary had been subpoenaed from Medicare Australia. The Wife was cross-examined in relation to those records, and in particular, entries for the period from 14 May 2008 until
24 September 2008.
For the period of 14 May 2008 until 29 August 2008, the records revealed a consistent level of prescription medication of the type outlined by the Wife. The drugs were prescribed by Dr S and/or a doctor from the [C] Medical Centre, and were filled at the [D] SuperclinicPharmacy.
However, from 3 September 2008 through to 17 September 2008, in addition to prescriptions from Dr S, there was a series of prescriptions from Dr R for Oxycodeine, Diazepam and Codeine Phosphate with Paracetamol, which were filled at the [C] Superclinic Pharmacy. At the same time, prescriptions for Quetiapine Fumerate, Oxycodone, Diazepam and Temazepam from Dr S were filled at the [D] SuperclinicPharmacy.
When cross-examined, the Wife’s evidence was that she was riding a bike at about 7.00 pm on 3 September 2008 when she fell off into a rockery and squished her middle toe. It was extremely painful and she thought she may have broken it. It was her evidence that the clinic from which Dr S practices was closed, so she went to the [D] Superclinic where she saw Dr R. It was her evidence that he x-rayed her toe and asked for a medical history. She gave it to him, including details of her current medication, and that he gave her prescriptions because she was at the end of her weekly cycle and didn’t currently have painkillers in her possession.
It was her evidence that she subsequently spoke by telephone to Dr S, and told him what had occurred, and that he told her he would not authorise her to receive any further drugs from her usual pharmacy for two weeks and that he would contact the Superclinic to advise them not to prescribe her anything further. She said that Dr S told her to return to see Dr R for any follow-up treatement needed in relation to her sore toe.
The Wife was unable to offer any explanation as to why, when she subsequently returned to see Dr R on 17 September 2008, he prescribed further medication for her, and why she had those prescriptions filled at the Superclinic Pharmacy.
It was the Wife’s evidence that she had not gone “doctor-shopping” and that she had not over-medicated herself during this period.
Her evidence in relation to this incident was not convincing.
It was unfortunate that the Wife had not filed a Report or Affidavit from Dr S, and that Dr S was not available to give evidence to the
court in relation to the Wife’s medical condition and ongoing pain management.
In relation to the impact upon her of the drugs she takes for pain management, it was the Wife’s evidence that when first prescribed the pain medication it did make her sleepy. She denied that this is the case now. She said she is not asleep on the couch when the Husband dropped [X] back to her home at the end of [X]’s time with him. It was her evidence that she would hear the car pull up, and would wait for [X] inside the house as to avoid meeting the Husband because of their inability to communicate.
Drug screens
The Wife was asked by the Independent Children’s Lawyer to undergo sixteen random drug screens. She only completed seven of those tests.
It was the Wife’s evidence that there was some three to four screens that she couldn’t afford to have done, as it cost some $90 per screen. She received a request for a screen when she was on holiday in Bali. She was unable to explain why the other four screens had not been completed.
[X]’s hygiene
It was the Wife’s evidence that [X] showers every second day, and that she is not dirty and unkept. She indicated that second day showering was the rule in her parents home as they are very water-conscious.
The Wife conceded that [X] has had a problem all year with head lice. She indicated that she has been treating [X] regularly for the lice, but it is proving to be very difficult to eradicate them.
The assault by [Y]
The Wife was cross-examined at some length in relation to the assault by [Y] on [X], and in particular as to whether she believed the assault had taken place at all.
The Wife’s evidence was that when initially advised of the assault, she didn’t know what to believe. She thought something that was innocent playing had been made out to be something dirty and violating. She said that she had heard [Y] and [X] jumping around on her bed, had yelled at them to stop fighting on the bed as they would break it, which they did and that [Y] went out to play on his bike. [X] came and sat next to her on the couch and didn’t say anything to her.
When challenged as to whether she now believes [X]’s version of events, particularly as [Y] has pleaded guilty, it was the Wife’s evidence that she does believe [X] and that she had told her so. However, she only told [X] this when [X] returned from the hearing of the matter and directly challenged her Mother as to whether she believed her now. This was some twelve months after the initial assault.
The Wife was also cross-examined as to whether she had arranged any counselling or assistance for [X] subsequent to the assault. It was her evidence that she had attempted to take [X] to see CASA, but had been told by them that she wasn’t able to do so until the court matters had been finalised. It was the Wife’s evidence that she took this to mean the proceedings before this court, rather than in all probability it referring to any action that the Department of Human Services might take. I accept that this is what the Wife believed, but unfortunately the result of this is that [X] hasn’t had any counselling to date.
[X] in after-school care
It was the Wife’s evidence that she had placed [X] in after-school care as [X] had specifically asked her Mother to be able to go to after-school care for the social interaction.
It was the Wife’s evidence that [X] was not going every day now and that [X] was now doing ballroom dancing on Tuesday nights, which she really enjoyed.
Emotional dependence on [X]
In the Family Report prepared by Matthew Saunders, he notes in paragraph 30 of his report the following:
“In short, [X]’s presentation is consistent with a young girl burdened with a substantial preoccupation about her mother’s emotional and physical vulnerability, and experiences her mother as dependent upon her for happiness and nurturance.”
When interviewed by Mr Saunders, the Wife is quoted in paragraph 18 of that report as saying as follows:
“I could not live without her. We’ve been through so much together. She’s just been like a rock to me.”
Further in that paragraph, Mr Saunders reports:
“Despite Ms Caffyn’s contention that she did not depend on her daughter for nurturance she stated,
‘Because it’s just been me and her I have not had another person around to speak to. That’s why I’ve leaned on her so much. It’s these things I get from her that I don’t get from a spouse and that’s the comfort I’ve needed.’
She also stated,
‘[X] puts her arms around me and cuddles me when she sees me sad because it’s in her nature.’”
When cross-examined on this component of Mr Saunder’s report, the Wife said that:
“The thought of losing her. I couldn’t stand it. I can’t imagine life without her.”
The Wife conceded that she had told [X] this. She also conceded that she is not always capable of shielding [X] from her worries and concerns, and that this is something that she “will have to work at”.
Mr Saunders strongly recommended that the Wife obtain counselling to assist her to be more aware of how her “dependency issues impact on the manner by which she parents and relates to [X]”.
Dr K
The Wife attended upon Dr K, forensic psychiatrist, for the preparation of a psychiatric assessment pursuant to the orders of this court made in September 2007.
Dr K prepared a report dated 1 May 2008, which was placed before this court by way of an affidavit sworn on 4 June 2008, and filed
5 November 2008.
Dr K, in cross-examination, confirmed his diagnosis that the Wife was suffering from a pain disorder with associated psychological factors due to a work injury. He explained that when someone is involved in a compensable injury, they become brooding and introspective about their pain, which then worsens and it becomes a vicious cycle. It was his evidence that when the claim settles, in most cases, the pain disorder generally significantly lessens or goes away.
Dr K was read the Wife’s current medication list and it was his opinion that it was the type of medication that someone with pain syndrome would be on, though was concerned that she appeared to be taking excessive Oxycodeine.
When cross-examined about the Wife’s level of functioning on this level of medication, it was his evidence that after a while, people who have been on this level of medication develop a tolerance to them and the medication becomes less effective.
Dr K indicated in his evidence that it was very common for people on high levels of the medications of the type the Wife is taking to have an arrangement between their doctor and pharmacy so that only so much medication was given to a patient each week. Dr K also indicated that in some circumstances, the treating general practitioner can alert pharmacies to advise if the patient comes in with prescriptions other than from their treating doctor.
When questioned about the Wife going “cold turkey” in relation to her pain medication, Dr K was of the view that this was a good thing. He would be concerned if she were to go off her anti-depressants.
Dr K indicated there was not an addiction element associated with the taking of the medication.
Matthew Saunders
Matthew Saunders is a psychologist who prepared a detailed Family Report. Mr Saunders is strongly of the view that it would be in the best interests of [X] to remain living with her Mother and to spend alternate weekends with her Father from Friday after school until Monday before school.
Mr Saunders was of the view that [X]’s primary attachment is with her Mother. He indicated this is not because of any feeling of obligation [X] has towards her Mother, but is a genuine heartfelt sense of care and nurturing in her Mother’s care, as compared to when in her Father’s care.
Mr Saunders was concerned about the Mother’s dependency and needs which are projected onto [X], but he was of the view that they were not so overwhelming that they were causing [X] any emotional disturbance or causing any pathology in her.
Mr Saunders was most concerned as to whether [X] would cope with the huge adjustment that would be required if she were to go and live with her Father.
Mr Saunders was particularly critical of the Husband for taking [X] out of school in 2007. It was his evidence that it would have been much better for [X] to have been left in her school at that time, especially when she had been unilaterally taken from her Mother’s home and from her primary attachment. Mr Saunders sais that if [X] were to live with her Father, [X] should stay at her current school where she is well settled, is doing well and has a close group of friends.
Mr Saunders thought it was most telling that [X] had been unable to tell her Father how unhappy she was at her new school at the time she was living with him.
Mr Saunders was not supportive of [X] having additional time, other than alternate weekends, with her Father, as the adjustment from being an only child to being the fifth child in a large household was something that [X] could not cope with easily.
When cross-examined in relation to the assault by [Y] on [X],
Mr Saunders was concerned that the Wife’s ambivalence around whether the assault happened was not in [X]’s best interests but noted that on a practical level she was complying with the orders that [Y] not be brought into any form of contact with [X]. He was strongly of the view that she would benefit from counselling from somewhere like CASA, and that that needed to take place as soon as possible.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In this case, both parties agree that they should have equal shared parental responsibility for the child. Both parties concede that they have difficulties in communicating with each other, though to her credit, in recent times the Wife had ensured that [X]’s Father was invited to her ballroom dancing competition/concert in December. There are important consequences which flow when an order is made for equal shared parental responsibility.
Where the parents have equal joint parental responsibility for a child, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. It provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
There is no application by either party that the court make such an order, and it is the evidence of Mr Saunders that such an order would not be in [X]’s best interests.
Sections 65daa (2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The proposals of both the parties that [X] spend five nights with the parent with whom she is not living is such that an order in those terms would be for her to be spending significant and substantial time with the other parent. Orders in those terms are being made.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[X] has a meaningful relationship with both of her parents. Whilst [X]’s primary attachment is to her Mother, she has a close and loving relationship with her Father, something acknowledged by the Wife and Mr Saunders.
The issue before the court is whether [X] is being psychologically harmed or exposed to neglect whilst in her Mother’s care.
The Husband has real concerns about the Wife’s psychological well-being, particularly arising from the impact on her of her ongoing pain issues arising from her back injury. He is also most concerned about the Wife’s emotional dependence upon [X], and that that is forcing [X] to take on an adult role and to become emotionally responsible for her Mother.
The Husband also raised the Wife’s history of suicide attempts resulting in hospitalisations, the last of these being in 2005.
The Husband is also concerned that [X] is being neglected and that her personal hygiene and general care is below par.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account which I will consider in turn.
Section 60cc 3(a) 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
[X] has very strongly expressed the desire to continue to live with her Mother.
Mr Saunders, in paragraph 37 of his report, noted as follows:
“[X] presented as a precociously mature eight year old girl who as the interview progressed was able to communicate her concerns about both parents.”
Mr Saunders was cross-examined as to whether [X]’s stated preference to live with her Mother arose from a genuine wish on her behalf or from a feeling of obligation arising from the Mother’s emotional dependency upon her and [X]’s concerns as to her Mother’s mental and physical health. Mr Saunders was of the view, arising from [X]’s answers such as, “Mum knows where I am”, “I love playing with my Mum”, “My Mum’s nice”, that there was a substantial quality to the relationship between [X] and her Mother which was natural, positive and showed a sense of security, and was of the view that her wish to stay with her Mother was genuine and heartfelt.
Whilst only eight years of age, the evidence of Mr Saunders and both parents is that [X] is an intelligent and mature girl. I am of the view that some considerable weight should be given to her expressed views.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As previously set out in this judgment, [X]’s primary attachment is to her Mother. There are concerns as to the level of emotional dependence that the Mother has on [X], and there is no doubt that [X] is concerned for her Mother’s health and well-being.
[X] has a good relationship with her Father, though she told
Mr Saunders that her Father was sometimes strict and that she was on occasion scared of him because he yelled at her.
[X] is close to her Maternal Grandparents, with whom she currently resides, though has complained to her Father that they argue too much.
In the interview with Mr Saunders, [X] seemed a little ambivalent about Ms B, her Father’s partner, and perhaps a little resentful of having to compete with her and her children for her Father’s affection when she is spending time with him in their household.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
As previously noted, the parties do not communicate well.
When the parties separated, there is no doubt that the Wife was devastated and felt that the Husband had “broken her heart” when he re-partnered, and with someone known to her. There was an exchange of quite nasty text and other messages from the Wife to the Husband at this time.
At the time of separation, the Wife was severely depressed and, on her own admission, was “doctor-shopping” and taking excessive prescription mediation.
The Husband is very negative about the Wife’s parental capacity and genuinely believes that she is unable to adequately parent [X]. These negative views are known to [X].
Despite these factors however, both the parents were able to put in place an arrangement, by agreement, that allowed [X] to develop a relationship with both her parents and both have complied with orders.
When cross-examined on their capacity to encourage a close and continuing relationship between the child and the other parent,
Mr Saunders noted as follows:
“Both parents are about equal in their capacity to encourage a relationship with the other parent, and it is far from perfect.”
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
If [X] were to live with her Father, this would mean that she would not be living with the parent with whom she has the primary attachment.
Mr Saunders was strongly of the view that a child needs to live primarily with the parent they are most attached to as this develops the child’s ability to nurture positive relationships into the future.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties currently live approximately 20 minutes apart. There are no practical difficulties in [X] being able to spend substantial time with both her parents.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Both parents have the capacity to provide well for [X]’s intellectual needs.
She is reported to be doing very well at school. In his report,
Mr Saunders gave details of a telephone interview that he had with the principal of [C] Primary School and he says that Ms J reported that:
“[X] presented as a happy, well adjusted and socially appropriate girl, who maintained a close group of friends and enjoyed school.”
The real issue is the capacity of the parties, and in particular the Wife, to provide for [X]’s emotional needs, especially in light of the Wife’s emotional dependency upon [X]. As previously set out in this judgment, there are concerns as to the level of this dependency and this is something that the Wife will have to address by way of counselling to ensure that she is able to protect [X] from this into the future.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not relevant.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parties have demonstrated a reasonable attitude to the responsibilities of parenthood.
There is no doubt that the Wife’s parenting capacity is impacted by her pain syndrome with psychological factors, arising from her significant back injuries. It is vitally important that she is compliant with all the directions of her treating general practitioner, Dr S, in relation to ensuring she strictly follow his directions as to the type and quantity of prescription drugs that she imbibes. It is also vitally important that she does not seek assistance or further prescriptions from any other practitioner.
There are also issues about the level of emotional dependency that the Wife has on [X]. It will be necessary for her to engage in the appropriate counselling to assist her in addressing these issues so that she gains insight into the impact those behaviours have on [X].
The Husband, whilst having genuine concerns about the Wife’s capacity to parent [X], must acknowledge and respect [X]’s genuine attachment to her Mother, and shield her from his very negative views of the Wife.
The Husband must also try and create some special Father-daughter time, and develop some insight as to the difficulties in adjustment that [X] needs to make when moving between a single parent, one-child household to a busy household of five children, where she understandably comes fifth.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
Not relevant.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
Not relevant.
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
No one can say with any certainty whether any particular orders are less likely to lead to the institution of further proceedings between the parties.
However, if the Wife continues to address and acknowledge the issues arising from her overuse of pain medication and engages in the ordered counselling to address her emotional dependency on [X], this should go a long way to allay the Husband’s concerns about her parental capacity.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
Dr K’s evidence contained in paragraph 10 of his report, and confirmed under cross-examination, was as follows:
“The prognosis from the psychiatric viewpoint is that her psychiatric state should show an improvement after her major WorkCover claim is settled. I would anticipate that she will always be left with some personality weaknesses, and some longstanding chronic depression of mild degree. I would anticipate however, that the pain syndrome, and psychological factors should lift over the next two or three years.”
The Wife’s evidence was that her common law claim for pain and suffering had only just commenced, and that the solicitors with the conduct of the matter would not be filing any documentation until January 2009 after she had seen several medico-legal doctors. Thus the resolution of her claim is some time away – possibly some years.
In the submissions made on behalf of the Independent Children’s Lawyer, it was proposed, albeit not strongly and conditional upon the Wife living with her parents, that [X] continue to be in her primary care, and spend five nights a fortnight with her Father.
Conclusion
In balancing the best interests of [X], and in particular, her strongly held wish to remain in the primary care of her Mother and the strength of that being her primary attachment against the concerns about the quality of care she receives from her Mother, I am of the view that it would be in her best interests to live with her Mother and to spend five nights per fortnight with her Father.
However, I do remain concerned about the quality of care that [X] is receiving from her Mother, particularly in relation to the level of prescription drug intake and the impact that has on the Mother. I am also concerned about the level of emotional dependency that the Wife has on [X].
To some level, I am reassured that [X] is progressing well in her Mother’s care. This view is supported by the feedback from [X]’s school, who report she is a happy, well adjusted and socially appropriate girl, with a close group of friends. The school also confirmed they had no concerns in relation to [X]’s levels of hygiene and cleanliness or the provision of appropriate school lunches.
Taking on board Dr K’s evidence that the resolution of the Wife’s major WorkCover claim should show an improvement in the Wife’s psychiatric state, I am going to order that the orders in relation to [X] living with her Mother are conditional upon her continuing to live with her parents until her WorkCover claim has been finalised.
Additionally, I am going to make orders that the Wife is to attend upon no other medical practitioner for the prescription of medication than
Dr S, or doctors at his clinic, or such other medical practitioners as approved by Dr S.Further, I am going to order that the Wife is to request Dr S to put in place whatever orders or directions he is able to so that he is notified by any other doctors or pharmacies in Victoria, if the Wife is “doctor-shopping”.
I am going to order that the Wife authorise Dr S to notify the Husband in the event that Dr S is of the opinion that she is not complying with his reasonable directions as to drug intake or that her psychiatric state is such that she is unable to properly care for [X].
It is also my intention to order that the Wife immediately engage in appropriate child-focussed counselling to assist her in addressing the issues arising from her emotional dependency on [X].
I will make orders that the Mother do all things necessary to enable [X] to attend upon CASA for counselling in relation to the sexual assault on her by [Y].
Finally, both parties are encouraged to work on their parental relationship so that they are better able to communicate with each other about their daughter and enable [X] to have an ongoing and meaningful relationship with both her parents.
I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Bender FM
Associate: Sarah Hession
Date: 11 December 2008
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