Moers & Sands
[2011] FMCAfam 47
•24 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOERS & SANDS | [2011] FMCAfam 47 |
| FAMILY LAW – Children – child aged 7 – equal shared parental responsibility – high conflict between parents – final hearing commenced but unable to be completed in the time allocated – arrangements for care of child until final hearing can be concluded – evidence taken from court appointed expert and the principal and the classroom teacher at the child’s school – child said to be emotionally and educationally at risk – nature of neglect – significance of long standing arrangements for care of child – best interests. |
| Family Law Act 1975, ss.60B; 60CC; 61DA; 65DAA; 65DAC; 65DAE; 68LA |
| Moers & Sands [2007] FMCAfam 1067 MRR v GR [2010] HCA4 Slater & Light [2010] FamCAFC 1 |
| Applicant: | MR MOERS |
| Respondent: | MS SANDS |
| File Number: | ADC 2864 of 2007 |
| Judgment of: | Brown FM |
| Hearing dates: | 7, 8, 9 & 10 December 2010 |
| Date of Last Submission: | 10 December 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 24 January 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Basheer |
| Solicitors for the Applicant: | Clelands |
| Counsel for the Respondent: | Mr Childs |
| Solicitors for the Respondent: | P R Dixon & Co |
| Counsel for the Independent Children’s Lawyer: | Ms Lindsay |
| Solicitors for the Independent Children’s Lawyer: | Legal Services Commission of SA |
ORDERS
UPON NOTING that the proceedings are adjourned part heard for completion on the 28, 29 and 30 June 2011 and 1 July 2011.
UNTIL FURTHER OR OTHER ORDER
The father have parental responsibility for making decisions concerning the health and education of the child of the relationship [X] born in 2002 (herein after referred to as the “child”).
The child live with the father.
The child continue to attend [omitted School] for his primary school education.
The father be substituted for the mother as the enrolling parent at [omitted School].
The father arrange with the Principal of [omitted School] for the child to be accepted back into the Out of Hours School Care program offered by the school.
The father take all steps necessary to provide the Principal of [omitted School] with all authorities necessary to enable and permit the child to:
(a)Engage with the school counsellor;
(b)Engage in internet learning; and
(c)Engage in any other appropriate learning activity as recommended by the school included but not limited to the Rainbow Reading Program.
The paternal grandmother be at liberty to attend and collect and deliver the child to and from school at the usual time.
The father take all necessary steps to liaise with the Principal of [omitted School] and the appropriate officer at Centacare to obtain information as to the identity of an appropriate child psychologist for the child to attend upon.
The father take all necessary steps to obtain a mental health plan referral for the child so that he can commence counselling with such appropriately qualified expert as identified to the father either by the Principal of [omitted School] or Centacare pursuant to order 8 herein.
The father do all things necessary to obtain a referral from his general medical practitioner in order to receive psychological and/or other counselling in the terms recommended by the family report writer herein, Mr P and provide Mr P with an authority directed to that person to enable Mr P to consult with him/her prior to the preparation of the family report update ordered pursuant to order 19 hereof.
The father be restrained and an injunction issued restraining him from:
(a)Attending at any sports training or matches involving the child at any time in which the child is otherwise in the care of the mother;
(b)Discussing these proceedings within the hearing or the presence of the child; and.
(c)Denigrating, harassing or abusing the mother.
The mother spend time with the child as follows:
(a)During school terms commencing the first weekend of each new term:
(i)From 5.00 pm Friday to 5.00 pm Sunday (or 5.00 pm Monday in the event that Monday is a public holiday) on each alternate weekend; and
(ii)At any other times as may be agreed between the father and the mother in writing.
(b)During the short school holiday periods of 2011:
(i)From 5.00 pm on 15 April 2011 to 5.00 pm on 23 April 2011;
(ii)From 5.00 pm on 8 July 2011 to 5.00 pm on 16 July 2011; and
(iii)From 5.00 pm on 30 September 2011 to 5.00 pm on 8 October 2011;
The mother be restrained and an injunction issued restraining her from:
(a)Attending upon the premises of [omitted School] save and except when invited by the school authorities to do so;
(b)Photographing, surveilling or recording the child, the father or the maternal grandmother on the premises of [omitted School] or its immediate surroundings or at the child’s home;
(c)Engaging a private investigator for the purpose of surveilling the child, the father or the paternal grandmother;
(d)Attending at any match or training of any sport involving the child during the time that the child is in the care of the father;
(e)Discussing these proceedings within the hearing or the presence of the child;
(f)Denigrating, harassing or abusing the father, the paternal grandmother or any of the staff of [omitted School]; and
(g)Attending with the child upon any medical practitioner other than those named by the father in respect of the child’s epilepsy or general health other than in circumstances of medical emergency.
The mother provide the child with any medications given to her by the father in the discharge of his responsibilities to attend to issues pertaining to the child’s health.
The mother do all things necessary to obtain a referral from her general medical practitioner in order to receive psychological and/or other counselling in the terms recommended by the family report writer herein, Mr P and provide Mr P with an authority directed to that person to enable Mr P to consult with him/her prior to the preparation of the family report update ordered pursuant to order 19 hereof.
All handovers occur, where ever possible, at the [omitted] Children's Contact Centre and if not possible inside the foyer at the [omitted] Police Station.
In the event that the parties have not enrolled in the [omitted] Children's Contact Centre handover programme they forthwith take all necessary steps and attend all necessary appointments to ensure registration and entry into such programme.
The child be at liberty to email and telephone his mother and father when in the care of the other parent pursuant to these orders and that parent facilitate the child to communicate with the other parent by telephone or email.
The family report herein be updated and the parties do all things as necessary and attend at all such appointments as are made for them to facilitate such report being prepared by Mr P in June of 2011 with the report to include interviews with Ms A, the principal of [omitted School] and with the child’s 2011 classroom teacher at the school.
IT IS NOTED that publication of this judgment under the pseudonym Moers & Sands is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2864 of 2007
| MR MOERS |
Applicant
And
| MS SANDS |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to final parenting arrangements for one child. He is [X] born in 2002. The parties to the proceedings are [X]’s father Mr Moers and his mother Ms Sands.
The background to the matter is complex and has resulted in two previous written decisions.[1] At this point, it is sufficient to say that [X] has lived predominantly with his mother since the parties separated in early 2007. It is now the father’s position that this longstanding arrangement should be changed and that [X] should live predominantly with him.
[1] See Moers & Sands [2007] FMCAfam 1067 and Moers & Sands [2009] FMCAfam 1354
It is the father’s case that, if the court was to continue the current arrangements for [X]’s care, it has the potential to expose [X] to an unacceptable risk that he will come to some form of psychological harm as a result of his mother’s abusive and neglectful parenting of him. The father instituted his application on 17 February 2010.
The mother’s position is that she should have sole parental responsibility for [X], who should spend time with his father on alternate weekends and overnight on each Thursday, during school terms; as well as for half of each school holiday period and on special occasions. Essentially she vehemently opposes any significant change being made to the existing care arrangements for [X].
Because of the complexity of the situation surrounding [X], particularly the entrenched conflict between the parties, I determined that he should be independently represented in these proceedings. The Independent Children’s Lawyer “the ICL” is Ms Derewlany, a solicitor employed by the Legal Services Commission of South Australia.
Ms Derewlany is to be regarded as a party to these proceedings. She has briefed a barrister, Ms Lindsay, to appear on her behalf. The law requires Ms Derewlany and Ms Lindsay to formulate a position, based on the evidence available to them, which they think will best serve [X]’s best interests and advocate that view to the court.[2]
[2] See Family Law Act 1975 at section 68LA
The parties’ competing applications were fixed for final hearing for three days on 7, 8 and 9 December 2010. This proved to be a woefully inadequate estimate of the time required to hear all the evidence which the parties wish to lead before the court. Accordingly the case was adjourned part heard to 28 June 2011, when four further days have been allocated to complete the evidence in the case. Regrettably, these were the earliest consecutive hearing days available to me.
The period between 7 and 9 December was occupied in the court taking evidence from three professional witnesses. They were Mr P; Ms A and Ms G. They were each extensively examined by barristers briefed to appear on behalf of the mother and father and by Ms Lindsay. At the conclusion of their evidence, issues arose as to what were the appropriate arrangements for [X]’s care, pending the conclusion of the trial process in mid 2011.
The ICL was of the view that a proper consideration of [X]’s best interests dictated that he should move to live predominantly with his father, during the school year of 2011. She submitted that this change in arrangements for [X]’s care was essential to ensure that he was able to continue at [omitted School] and receive appropriate counselling and psychological treatment, which she asserted [X] was sorely in need of.
Ms Lindsay submits that the court should make the following interim orders:
“The father have sole parental responsibility for the child [X] born in 2002
That the child live with the father
That the child attend [omitted School]
That the father be substituted for the mother as the enrolling parent at [omitted School]
That the father do arrange with Ms A and attend upon a re-entry appointment in respect of the Out of Hours School Care program at [omitted School] together with the child and as may be recommended by Ms A.
That the father and the mother do forthwith provide in writing to [omitted School] all emergency information they may require and do continue to advise of any change to same within 24 hours of such change such advice to occur by written communication
That the father do ensure the school is provided with all authorities necessary to permit the child to:
Engage with the school counsellor
Engage in internet learning
Engage in any other child appropriate learning activity as may be recommended by the school including but not limited to Rainbow Reading Program
That the paternal grandmother be at liberty to attend to deliver and or collect the child from school at the usual times without restriction as to where she then travels with the child.
That the father do forthwith liaise with [omitted School] and Centacare to obtain information as to an appropriate additional child psychologist to attend upon [X]
That the father do obtain a mental health plan referral for [X] to commence counselling with that person identified by the School and Centacare in paragraph 9 above herein
That the father do attend upon his treating medical provider to obtain a referral for psychological/psychotherapeutic counselling in terms recommended by Mr P’s report of 30 September 2010 and do provide to his medical provider and any such counsellor/therapist a copy of the report of Mr P.
That the father be restrained and an injunction is hereby granted restraining him from:
Attending at any sports training or matches during the time in which the child is in the care of the mother
Approaching the mother during any finals game attended by the mother
Discussing the within proceedings within hearing or in the presence of the child
That the father promote the child’s relationships with extended family members including but not limited to:
The child’s paternal aunt and her family
The child’s paternal grandfather
The child’s maternal grandparents
That the father do enrol the child at Cricket, Swimming and Football or such other sports as may be agreed between the father and child and do facilitate the child’s attendance at these activities.
That the mother spend time with the child as follows:
DURING THE CHRISTMAS 2010 / JANUARY 2011 school holiday period:
From 5pm 17 December 2010 to 12 noon 25 December 2010
From 5pm 1 January 2011 to 5pm 8 January 2011
From 5pm 15 January 2011 to 5pm 23 January 2011
DURING SCHOOL TERMS 2011 commencing the first weekend of each new term,
From 5pm Friday to 5pm Sunday each alternate weekend
Such other time as may be agreed between the father and mother in writing
DURING THE SHORT SCHOOL HOLIDAY PERIODS 2011:
From 5pm 15 April 2011 to 5pm 23 April 2011 (noting holidays 15 April 2011 to 2 May 2011 and Easter period 22 – 25 April 2011)
From 5pm 8 July 2011 to 5pm 16 July 2011 (noting holidays 8 July 2011 to 25 JULY 2011)
From 5pm 30 September 2011 to 5pm 8 October 2011 (noting holidays 30 September 2011 to 17 October 2011)
That the mother’s time with the said child is subject to the following conditions:
That the mother be restrained from:
Attending upon the premises of [omitted School] save and except at the express written invitation of the school and then only in terms of the said invitation.
Photographing, surveilling or recording the child, the father and or the paternal grandmother at [omitted School] or at their home or at any other location.
Engaging a private investigator to attend for the purpose of photographing, surveilling or recording the said child, the father or the paternal grandmother
Attending at any match or training of any sport involving the child during the time the child is in the care of the father
Approaching the father or paternal grandmother or child if the mother attends at finals games in which the child is involved
Discussing the within proceedings with or in the presence or hearing of:
The child
Any non party to these proceedings save the family consultant or psychological or psychiatric counsellor as recommended by the mother’s treating medical provider
Denigrating, harassing, abusing, following or surveilling the child, the father, the paternal grandmother or [omitted School] or any staff member or office holder thereof or permitting any other person to do so
Attending with the child upon any medical provider other than those named by the father with respect to both the child’s epilepsy and the child’s general health
Attending without express written invitation upon the child’s counsellor/s
That the mother do:
Ensure provision to the child of such medications as may be advised to her in writing by the father at such times and in such doses as may be advised to the mother by the father.
Consult her treating medical providers and obtain a mental health plan referral for her own counselling
Provide to her medical health providers a copy of the Family Report of Mr P dated 30 September 2010
Comply with all reasonable directions made by her mental health providers
Ensure the child’s attendance at any sporting or other reasonable commitment (including friend’s birthday parties or extra curricular activities) during the time in which the child is in her care
Ensure the child is appropriately dressed and outfitted for all such activities referred to above herein
Ensure that the child’s possessions travel to and from the home of the father with the child
Ensure entries as need be to address the care, welfare and development of the child only in the communication book
Immediately notify the father in the event of any accident or illness involving the child [X]
That handovers do occur at the children’s contact centre [omitted] where possible but if this is not possible then inside the [omitted] Police Station
That in the event the parties have not enrolled in the [omitted] Children’s contact centre handover programme pursuant to order 13 April 2010, they forthwith do so and attend all necessary appointments to ensure registration and entry into same.
That as and from the date of acceptance of the parties into the [omitted] children’s contact centre handover program, handovers shall occur at that venue whenever possible.
That the child be at liberty to telephone or email his mother any reasonable time
That the parties do attend all such appointments as may be necessary to facilitate an updated family assessment report being prepared by Mr P in June 2011 with such report to include interviews with Ms A and the child’s 2011 class teacher at [omitted School].”[3]
[3] Minute of Orders submitted by the ICL on 10 December 2010
The ICL’s position is supported by Mr Moers but strenuously opposed by Ms Sands, who asserts that it is premature for the court to consider any change in arrangements for [X]’s care until all the evidence available to it, particularly from the parties themselves, has been fully considered by the court. These reasons for judgement relate to the determination of this interim issue – what are the appropriate arrangements for [X]’s care between now and the middle of 2011?
The Evidence
Mr P is a psychologist. On 21 May 2010, it was ordered that a Family Report be prepared for this case. The person asked to prepare this report was Mr P, who is a Family Consultant in the employ of the Family Law Courts. His report was released to the parties on or around 30 September 2010.
Mr P interviewed both of the parties concerned and observed each of them with [X] on 13 September 2010. He also interviewed Ms A, who is the Principal of the primary school attended by [X] - [omitted School] - on 21 September 2010.
In interview, Mr Moers explained to Mr P that he had been motivated to apply to the Court to alter the existing arrangements for [X]’s care, because of his perception that [X]’s mental status had considerably deteriorated, over the past year or so. Mr P reported the father’s comments as follows:
“In the last few months [X]’s just gone down hill so fast it’s not funny. He has been a violent little boy at school both with me and his mother … He’s been really falling apart at school and he cannot control his anger.”
Ms Sands also reported similar concerns to Mr P, including serious difficulties at school, leading to [X]’s suspension. She attributed [X]’s violent and disturbed behaviour to Mr Moers’ violent and aggressive behaviour towards her.
Mr P quotes Ms A as saying the following to him:
“This young man is in dire need of support … I enrolled [X] as a reception student. He was an absolute delight. Over the years he’s changed dramatically. He is at risk academically, and I had to suspend him because four boys are terrified by his behaviour … He needs help. He needs ongoing help. He’s just so out of control.”
Ms A described [X] to Mr P as being “severely at risk”. She also indicated that [X] was at risk of expulsion, from her school, unless his behaviour improved.
Mr P observed [X] to interact comfortably and happily with each of his parents. Both provided him with appropriate guidance and affection. In his interview with Mr P, [X] acknowledged his serious difficulties at school. He said as follows:
“I’ve been threatening some kids at school with scissors and staplers. I got four days suspension.”
In his report, Mr P provided the following evaluation:
“From the accounts of Ms A, [X], and [X]’s parents it is evident that [X] has a serious emotional and behavioural disturbance and also requires significant professional help. This needs the active support of Mr Moers and Ms Sands, and a readiness from each of them to accept and act on the advice they receive from [X]’s treating experts even when that advice may be unpalatable to them. It is possible that the counselling being organised at the times of interviews for this report will be adequate. It is also possible, depending on the advice of the counsellor that [X] will need additional assessment and treatment.
It was evident from information obtained for this report that [X] receives considerable understanding, care, and support from his current school. There was no information obtained in this report to indicate that any of [X]’s problems originated in the school he attends, or that moving him to another school would alleviate those problems. It is more likely that [X] would experience additional stress in being moved to another school, and there is a risk that he would be understood less well, he would be less supported, and his difficulties would be compounded.
The current structure of care arrangements for [X] emerged from the circumstances of Mr Moers’ employment, circumstances which no longer exist. [X] and neither of his parents want the existing structure to continue. Each parent has applied for an arrangement whereby [X] would live the majority of the time with him or her, while spending a substantial amount of time with the other parent on a regular basis, while [X] has proposed an equal time alternate fortnight arrangement.
…
Each parent had very different accounts of who has been primarily responsible for initiating and maintaining conflict, and poor communication between them. In making a decision about the parent with whom [X] lives for the majority of the time, it may be important to establish which parent has the better history and the greater estimated capacity to support [X]’s relationship with the other parent in the long term. If [X] lives for the majority of the time with the parent who can better support his relationship with the other parent, it is likely to be beneficial for his relationships with both of them and his consequent long-term wellbeing. It is emphasised again that there is evidently much potential for both parents to improve their behaviour in this domain.”[4]
[4] See Family Assessment Report at paragraphs 55-57, 61
Accordingly, in his report, Mr P recommended that [X] continue to attend [omitted School] and receive urgent professional psychological or counselling assistance. He also recommended that both parents seek some form of counselling to assist them to change their own behaviour towards one another.
Given his inability to establish the truth or otherwise of the parties’ mutual criticisms of one another but given his view that an equal time parenting arrangement was clearly unworkable in [X]’s case, Mr P recommended that [X] should live for the majority of time with one of his parents and spend between three or four nights per fortnight with the other parent, as well as some holiday time and on other special occasions.
The main thrust of Mr P’s evidence was that the parties’ acrimonious and competitive relationship, with one another, was emotionally detrimental for [X]. As such, from his perspective, Mr P considered that [X]’s interests would be best served by any order made by the Court which would diminish his level of exposure to this conflict.
Mr P did not feel that he was in a position to determine whether one parent was driving the conflict more than the other. However, given his significant level of relationship with each of his parents, Mr P considered that [X] would be able to accommodate being in the predominant care of either of them. The important factor, for [X], was to reduce his exposure to the extraordinary levels of parental discord and acrimony existing between Mr Moers and Ms Sands.
As already indicated, it was Mr P’s opinion that [X] should remain, if at all possible, at [omitted School]. In the context of his report and prior to giving oral evidence to the Court, Mr P was asked to read the file, which had been maintained by [omitted School] in respect of [X].
Reading the notes confirmed Mr P’s opinion that the staff at [omitted School] were dedicated and committed to [X]’s wellbeing. The notes also left him with the impression that a great majority of the conflict and difficulty, which was occurring at [X]’s school, was the result of Ms Sands’ behaviour.
Mr P was asked his view as to the consequences, for a child of [X]’s age, of missing around 80 days of schooling over the past three years. He regarded this as a reasonably significant period, which was likely to have some impact on the child concerned, in a number of areas, including educational progress, social development and how the child was viewed by his or her peers. Mr P said as follows:
“… disruptions to development at any early stage can have long-term consequences. If particular learning is missed at a particular stage, it can take a long time to catch up on or it may never be caught up on property. If children get behind with school work, for example, they can develop a sense of themselves as being less capable, less worthwhile than their peers. That can have a cumulative effect or a self generating effect …”
Ms A did not provide an affidavit in these proceedings. She attended court as a result of a subpoena directed to her by the Independent Children’s Lawyer on 26 November 2010. Her evidence occupied most of the 8 December 2010. She was extensively cross-examined by counsel for each of the parties.
Ms A is a very experienced teacher. She has been the Principal of [omitted School] since May of 2006. It is a reasonably small school with an enrolment of around 370 students. Ms A knows [X] well. I shared Mr P’s view that she is a dedicated and professional person. Her evidence was compelling.
The purpose of Ms A’s evidence was to interpret the lengthy records produced by [omitted School] and give details of her own interactions with Ms Sands, which have been extensive and difficult.
Although she has never been [X]’s classroom teacher, Ms A knows him well. This is because his behaviour has become increasingly problematic and she has been called upon to discipline him, including suspending him from school and excluding him from classes. In her managerial role at the school, she also has to consider the welfare of other children, some of whom are frightened of [X] because of his behaviour towards them.
In addition, her colleagues have frequently consulted her about their concerns regarding [X] and their various interactions with his mother. In turn, Ms A has sought assistance from her superiors within the Catholic Education Department. It was her evidence that no family in her school is beset by as much conflict as the Moers/Sands family.
Ms A’s evidence can be summarised as follows. [X] is a child who is emotionally and educationally at risk to a significant degree. In her words, [X] “is not learning and he cannot learn in his current state”.
Nonetheless, she believes her school still has much to offer [X] and it would be retrograde to his interests to change his enrolment at this stage. However, she believes something needs to be done urgently, about [X], in order to address his behaviour and educational needs, otherwise she will have no alternative but to exclude him from the school. She believes this will be disastrous for [X].
Neither Ms A nor her colleagues and superiors in the Catholic Education Department believe that they can work constructively with Ms Sands, whom Ms A thinks lacks insight into [X]’s needs and whom she regards as a querulous and difficult personality.
Ms A’s is concerned that Ms Sands’ behaviour, over the last three years or so, has posed a threat to [X]’s psychological wellbeing. She and her colleagues at the school are at the “end of their tethers”, so far as dealing with Ms Sands is concerned. However, Ms A believes that she and the school can work constructively with Mr Moers, in attending to [X]’s various serious and pressing needs.
School records indicate that [X] had an unexceptional year in 2007, which was his reception year. This year was not marked by any unusual absenteeism or failures to progress educationally. He was described, in his end of year report for that year, as being “cooperative in his nature towards others”.
The current regime for parenting [X] was instigated in December of 2007, following the first contested hearing.[5] It was in the following year that staff at the school noted [X]’s behaviour was changing and becoming more of a concern. In this year he was referred to a counsellor based at the school. In the first semester of 2008, [X] was absent for seven days. In the second semester the rate of absenteeism was 17 days, which Ms A described as “high”.
[5] See Moers & Sands [2007] FMCAfam 1067
The parties have apparently been in heated dispute regarding the provision of financial support of [X]. Ms A reported that the school’s fees remain outstanding for the past few years. The father believes the fees should be paid out of the child support he provides. Ms Sands does not agree. No fees have been paid. Notwithstanding this mutual dereliction of parental responsibility, [omitted School] has been and will continue to be prepared to keep [X] at the school.
In mid 2009, Ms Sands delivered [X] to school in his pyjamas. As a consequence, Mr Moers had to buy another school uniform for [X]. Ms A was of the view that the motivation for this behaviour was to make a point about financial issues pertaining to [X] to someone, presumably Mr Moers. She regarded the action as inappropriate because of its impact on [X], particularly the potential for him to feel humiliated.
On 6 March 2008, Ms Sands wrote to Ms A stating that if any member of [X]’s paternal family, attended at the school for sports days, without the father being present, she would remove [X] from school for that day. Thereafter it has been the position that [X] has not attended any sports days at the school. Ms A considered that this had the potential, if it had not already done so, to lead to [X] feeling isolated from his peer group and being stigmatised by them.
Ms A deposes that Ms Sands does not like her (Ms A) communicating with Mr Moers and was inclined to misinterpret any communications she (Ms A) had with Mr Moers. She also said that she finds it professionally burdensome dealing with the level of email communication she receives from Ms Sands. She does not have any such concerns about Mr Moers, whom she finds easy to deal with.
As a result of the orders made in December 2007, each party was restrained from changing [X]’s enrolment at [omitted School], without the consent of the other parent. In September of 2008, Ms Sands indicated that she was considering changing [X]’s enrolment, during the periods that he was in her care.
Earlier that year, [X] had been diagnosed with epilepsy. Ms A was anxious to be provided with information about [X]’s health, so that the school could have an appropriate health care plan.
As a result of these matter, on 18 September 2008, Ms A wrote to Ms Sands in the following terms:
“Your recent statement that it is your intent that [X] will attend two schools depending on which parent has care on the time is highly unusual, and for a number of reasons it would be untenable for the school to accept such a proposal. I am unaware if both parents have agreed in writing to change the school currently attended by [X] as required by the order and I am also concerned this arrangement may not focus on the priority care and wellbeing for [X] while he is at school.
…I am concern about [X]’s ongoing health care. The school has a duty of care to take steps towards maintaining [X]’s health and safety, and requires the co-operation of both you and Mr Moers in order to adequately satisfy this duty. Would you please come to an agreement regarding the provision of information from medical practitioner to the school so a health care plan can be put in place?”
Ms A has indicated to Ms Sands, in the past, of the school’s wish to remain impartial in respect of any dispute between her and Mr Moers. The school’s focus being on [X] and his best interests. It was not until August of 2010 that the school received any medical information from Ms Sands, so that some form of health care plan could be put into place for [X] because of his epilepsy. Ms A’s impression was that the obstruction did not emanate with Mr Moers.
2009 seems to have been a difficult year for [X] and all those concerned at [omitted School]. It culminated in the dispute between the parties regarding [X]’s continued enrolment at the school, which I dealt with on 18 December 2009.[6] In the period between 30 January 2009 and 20 August 2009, [X] was absent from school, for the entire day, on approximately 49 occasions. The majority of these occasions were unexplained to the school authorities.
[6] See Moers & Sands [2009] FMCAfam 1354
The level of non attendance was so great that Ms A considered it appropriate to make a notification of suspected child abuse to the Department of Education and Children’s Services. The concerns identified to the Department were “attendance issues and family issues”. Ms A indicated that, in her twenty-eight years of teaching, it was the first time that she had cause to generate such a notification.
At the start of 2009, just over $2000.00, in school fees, was outstanding to [omitted School]. So far as the school is concerned, Ms Sands is regarded as the “enrolling parent”. As such, the school apparently sends the relevant accounts to her. She returned the March 2009 account to the school with a note which reads as follows:
“As there is a court order in place and that I do not want [X] to attend [omitted School], I therefore am not liable for the school fees.”
[X] continued to display the destructive behaviour in the classroom, which had begun in 2008. His classroom teacher in 2008 was Ms M. Ms A explained that Ms M had been compelled to “evacuate” her classroom of students, on two occasions, because of [X]’s violent behaviour.
The impression I have from Ms A’s evidence is that [X]’s behaviour, which was concerning in 2008, became worse in 2009. This period also correlates with an increase in tensions between Mr Moers and Ms Sands, which resulted in Mr Moers’ solicitors writing to Ms Sands, indicating that he did not wish to change the current orders, particularly in terms of the school which [X] attended.
As part of her response to this letter, Ms Sands wrote to Ms A on 21 May 2009. She indicated that she would be engaging the services of a private investigator, who would monitor whether Mr Moers remained with [X], after the commencement of school, and he (the investigator) would report to her if he (Mr Moers) did not leave the school premises promptly.
Ms A agreed with the proposition put to her that this situation was extraordinary and was unacceptable to the school authorities. In followed upon the mother attending at school, during school hours, in order to photograph [X], apparently in an attempt to gather evidence about what clothes he was wearing.
Ms A responded to this proposed initiative in conciliatory terms, in an email dated 25 May 2009. She invited Ms Sands to attend upon her to discuss any welfare concerns, which she might have in respect of [X]. She made it clear that it would be inappropriate for a private investigator to attend upon the school and it was not helpful for [X] to be photographed. She apologised for any delay in providing Ms Sands with documents relating to [X].
Ms A prefaced her email with a request that Ms Sands attempt “in the future to limit the number of emails sent” to the school. In her oral evidence, Ms A said that the number of emails being sent by Ms Sands was causing “significant stress” to the administration staff of the school.
Ms G was [X]’s classroom teacher for 2009. Like Ms A she has not provided an affidavit for the court but came to give evidence as a result of a subpoena directed to her by the father’s solicitors.
Ms G began teaching in 1982. She has always worked in the Catholic Education System. She is an experienced teacher. I found her evidence to be thoughtful and balanced. She is clearly a very dedicated teacher. At this stage, I have no reason to doubt her evidence.
Ms G’s evidence is that she was concerned about [X]’s behaviour and performance in the classroom during all of 2009. She also had a number of interactions with Ms Sands, which she found disconcerting. She kept notes in respect of some of her meetings with Ms Sands.
It was the clear import of Ms G’s evidence that she found Ms Sands to be a difficult person to deal with. Her first meeting with Ms Sands occurred on 24 March 2009, when she came into Ms G’s classroom unannounced and began to look through [X]’s books. Ms G thought that this behaviour was unusual. It was certainly unexpected by her.
As a result of [X]’s performance at school, Ms G was anxious to confer directly with Ms Sands about him. However, Ms Sands had not arranged to attend a parent/teacher interview. This was a concern to Ms G, who wanted to thoroughly acquaint Ms Sands with the level of difficulty [X] was experiencing.
On 30 April 2009, when Ms Sands again attended at the school unexpectedly, Ms G arranged for Ms A to take her class, so that she could have an interview with Ms Sands and relay her concerns about [X] directly to Ms Sands. Ms G compiled a summary of what was discussed at the meeting.
Ms G indicated to Ms Sands that she considered [X]’s educational progress to be “at risk” particularly in the area of reading. She thought he was falling behind his peers in reading and spelling and needed support in these areas.
Ms Sands responded to these concerns by indicating that she was not happy with the school. She also indicated that her solicitors were in the process of suing the school, although the basis for any such proceeding was not disclosed. The impression I have of the meeting, from Ms G’s perspective, was that it was unsatisfactory and Ms Sands was difficult throughout it.
In early 2009, Ms G was concerned that [X] was not reaching the applicable benchmarks or standards for academic achievement for a child of his age and so was falling behind his class mates. She was also concerned that this failure was having consequences for [X]’s level of self esteem. My impression of Ms G is that she went to some pains to communicate her concerns regarding [X] to Ms Sands.
Neither Ms A nor Ms G considered that [X]’s problems needed to be addressed outside of a “mainstream” school. In particular, Ms G does not consider that [X] has any inherent cognitive disability or any specific learning difficulty, which would require specialised schooling.
Children at [omitted School], of [X]’s age, have access to classroom based computers, which they use to undertake their own research. In Ms G’s words “surfing the net is a skill children need to develop.” There are enough computers at the school for each child to access one individually at all times. The computers have internet filters and teachers, such as Ms G, ensure that the children have access only to appropriate sites.
It was the evidence of both Ms A and Ms G that access to computers, in this day and age, was critical to children developing appropriate literacy skills. Ms Sands has apparently indicated that [X] is not to have access to computers during school hours. Accordingly, when the other children in his class are using computers, he has to be provided with an alternative activity. He is the only child at [omitted School] who is not allowed to access the internet.
Both Ms A and Ms G thought that this state of affairs was deleterious to [X]. Firstly, it had implications for his educational attainments. Secondly, it led him to feel isolated within the school community and different from his class mates. Given [X]’s other vulnerabilities, Ms G did not think that this state of affairs was helpful to [X]’s self esteem.
Ms G also deposed that she sent work home with [X] for him to do outside of school hours. Her experience that this work was rarely, if at all, done whilst [X] was in Ms Sands’ care but was invariably completed, when he was in the care of Mr Moers. Given [X]’s educational issues, Ms G considered it essential that [X] finish his homework.
In a letter, on the school file, Ms G described her involvement with Ms Sands, so far as [X] was concerned, as being frustrating and disappointing. She did not believe that [omitted School] could form a positive partnership with Ms Sands to “enhance outcomes for [X].”
For reasons already provided to the parties, in December 2009, I determined that [X] should return to [omitted School] following his mother’s unauthorised withdrawal of him from the school. I directed that Ms A be provided with a copy of my reasons so that she could be appraised of the background to my decision. Regrettably, during 2010, the staff of [omitted School] have not found it easy to collaborate with Ms Sands and it seems that [X]’s behaviour has further deteriorated.
On 15 March 2010, Ms A formally wrote to Ms Sands informing her of several issues which were of concern to the school authorities. These included the following:
·The unwillingness of Ms Sands to talk directly with staff members and her preference to communicate via frequent and repetitive emails;
·Her unscheduled visits to the classroom to see [X], particularly in the context of checking his school uniform;
·Her unwillingness to provide emergency contact information;
·The outstanding school fees;
·The pattern of [X] arriving at school mid morning and leaving school early in the afternoon;
·Her sending a taxi to collect [X] after school.
[X] was suspended from school following an incident which occurred on 6 August 2010. He lost control of himself in the classroom. He threatened a number of other children. He punched one child on the nose.
As previously indicated, at least four children at [omitted School] are currently frightened of [X] because of his violent behaviour. On past occasions he has threatened children with scissors and has stapled their hair. I agree his behaviour at school at times has been “out of control”.
[X] is currently barred from attending at [omitted School] after school care program because of his unacceptable behaviour. As recently as the day on which these proceedings commenced, [X] was excluded from his classroom because of poor behaviour. He spent much of that day walking in the school grounds with the school’s curator, the only person available to supervise him.
On the basis of the compelling evidence provided by both Ms A and Ms G, I am satisfied that [X] is a disturbed child, who is seriously at risk educationally. It is also patently clear to me that the current arrangements for his care are not working, particularly in terms of providing him with a satisfactory standard of education.
It is also abundantly clear to me that the school cannot work constructively with Ms Sands to bring about any change in [X]’s behaviour. Although I am unable to form a concluded view, it seems probable to me that Ms Sands is either consciously or unconsciously working against the school’s efforts because she wishes [X] to attend another school.
Legal principles to be applied at the interim stage
Because the final hearing, in this matter, could not be completed within the time allocated for it, circumstances compel me to make an interim or provisional decision concerning ongoing arrangements for [X]’s care until the hearing can be completed in June/July of this year.
I am well aware that there has been insufficient time for all the evidence in this case to be canvassed. In particular neither of the parents concerned has yet been cross examined. However, I am satisfied that the urgency surrounding [X]’s current circumstances dictate that there should be a reappraisal of his current care arrangements.
In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served is set out in the Family Law Act 1975 [see section 60CC].
What have been called the best interest considerations rest on two main pillars. The first is the importance to children of having a meaningful relationship with both parents. The second is the need to protect children from physical and psychological harm as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1), which sets out the objects of the legislation relating to children and are reiterated as the primary consideration in how a court determines what is in the child's best interests by section 60CC(2).
Other criteria relating to how a court is directed to consider how the best interests of any children concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
There is a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility for him or her. [section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
In the case of Goode & Goode[7], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[7] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[8]
[8] See MRR v GR [2010] HCA4 at paragraphs 13 and 15.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
Determining [X]’s best interests – section 60CC
a) The primary considerations
The applicable legislation places two considerations in a position of pre‑eminence – the need to protect any child concerned from harm, as a result of exposure to abuse, neglect and family violence; and the benefits of that child having a meaningful relationship with each of his or her parents.
On the basis of the evidence available to me, including Mr P’s assessment of [X], I am satisfied that [X] knows both his parents well. Pursuant to the December 2007 orders, he spends extensive periods of time, with each of them, although currently more time with his mother than with his father at present.
Accordingly, I am satisfied that [X] has a meaningful level of relationship with each of his parents. This will remain the case whether the existing arrangements continue until the final hearing date or there is the change to arrangements as advocated by both Mr Moers and the Independent Children’s Lawyer.
As a consequence of this state of affairs, it is my view that the need to protect [X] from the adverse psychological consequences of being exposed to either abuse and neglect or family violence must be given pre-eminence by the court at this stage [section 60CC(2)(b)].
I am well aware that one of the main planks of Ms Sands’ case is that Mr Moers has exposed both her and [X] to family violence and one of the reasons that [X]’s behaviour at school is so disturbed is that he is “acting out” his emotional response to this violence.
The parties have been separated for many years now. Prior to the December 2007 hearing, it was Ms Sands’ position that [X] should be parented by the parties in an equal time regime. From Mr Moers’ point of view, this was impracticable because it would have meant him giving up his “fly in/fly out” employment as a tradesman in Western Australia.
In the past, I have commented on my view that Ms Sands’ proposal was disingenuous and was motivated more by a desire to disrupt Mr Moers’ employment or some other secret motivation than any factor related to [X]’s best interests. However, the fact remains that Ms Sands was, ostensibly at least, open to [X] spending extended periods of time with his father in the period following separation.
Since the orders of December 2007 were made, the parties’ parenting relationship has deteriorated markedly. There have been a number of unpleasant altercations between them at the premises of [omitted School]. It is the view of staff at the school that Ms Sands’ actions have been provocative and inflammatory.
When the final hearing resumes, Mr Moers plans to call Ms R and Mr L both of whom have children attending [omitted School]. They give evidence of having been photographed by Ms Sands at the school and of having unpleasant interactions with her. I appreciate that this evidence is yet untested and Ms Sands has a different view as to its validity and probity.
It is against this background that the Independent Children’s Lawyer proposes that the parties enrol at a Children’s Contact Centre in order to facilitate the exchange of [X] between them and injunction be made restraining Ms Sands from attending on the premises of [omitted School], other than when she has been specifically invited by the school authorities to be there.
It is also the father’s position that the mother has, in the past, stalked him. However, police charges laid against Ms Sands, in respect of this allegation, were dismissed for want prosecution. These matters are indicative of the level of difficulty in the parties’ parenting relationship.
At this stage, I believe that I am able to find that the parties’ relationship is a volatile and difficult one and [X] has been adversely affected by this state of affairs. Certainly, this is Mr P’s view.
However, I am unable to make definitive findings as to which of the parties is more responsible for driving this level of conflict or indeed whether the parties must be held equally responsible for the parlous level of their parenting relationship and its disastrous consequences for [X].
I note however that it is Ms A’s view, based on her own personal experience of more than three years, that Ms Sands is a far more difficult and querulous person to deal with than is Mr Moers. This is an important matter, as is the fact that Ms A believes the school can have a normal school/parent relationships with Mr Moers but not with Ms Sands.
In my view, if orders are made which prevent the parties from coming into direct contact with one another, this is likely to mitigate significantly any prospect of [X] being exposed to any further episodes of family violence occurring between his parents. I also accept that Mr Moers is the less abrasive parent, so far as [omitted School] is concerned.
Accordingly, in my view, the main emphasis in this case must focus on the best means to protect [X] from sustaining psychological harm, as a consequence of his possible exposure to either neglect or abuse. I reach this conclusion because of the evidence of all three witnesses called so far – Mr P, Ms A and Ms G – that [X] is a child, who is currently “at risk.”
Abuse is defined in the Family Law Act 1975. It is a concept relating primarily to assault, including sexual assault, on a child. Thankfully, there is no suggestion that [X] has ever been abused in this sense. Regardless of any failings displayed by either party, it cannot be said that either would knowingly ever harm [X] in this way.
Accordingly, this is a case focused on neglect. Neglect is not a concept formally defined by the Family Law Act 1975. Its meaning must be gleaned from an examination of the objects underpinning Part VII of the Act, which deals with how arrangements for the care of children will best serve the interests of any child concerned.
These principles include the following:
Ensuring that children receive adequate and proper parenting to help them achieve their full potential;
Ensuring that parents fulfil their duties, and meet their responsibilities concerning the care, welfare and development of their children.[9]
[9] See section 60B(1)(c)(d)
The Full Court of the Family Court has recently discussed the term “neglect” in the context of the Family Law Act 1975. It had regard to the explanatory memorandum issued in tandem with the shared parental responsibility legislation, which amended the Act in 2006. This provided as follows:
“The term ‘neglect’, will have a similar meaning to its use in State and Territory child protection legislation. It is intended to be limited to situations where a lack of reasonable care is likely to cause unnecessary suffering or injury to the health of the child.”
Accordingly, the Full Court held that the term “neglect” ought to be given its ordinary meaning, which is akin to failing to afford proper care or attention.[10]
[10] See Slater & Light [2010] FamCAFC 1
I accept that, due to a combination of factors, [X] is significantly at risk because his primary school education is being compromised. The authorities at [omitted School] do not believe that they can work effectively with Ms Sands. I do not think that Ms A and the staff on whose behalf she speaks can be regarded as either unreasonable or capricious in holding this attitude towards Ms Sands.
At this stage, I do not believe that I have been provided with any other viable school, for [X] to attend, as an alternative to [omitted School]. To the contrary, I provisionally accept Mr P’s assessment that [omitted School] is a good school and [X] should not be moved from it.
In particular, at this stage, I have no reason to discount Mr P’s opinion that [X]’s serious problems do not emanate with the staff and education offered to him at [omitted School]. Accordingly, Mr P asserts that a change of school will not alleviate these problems.
To the contrary, Mr P’s view is that to change [X]’s school from one where his needs are documented and supported, that is [omitted School], would be detrimental to his best interests. In the absence of any evidence to contradict Mr P’s recommendations and given my provisional acceptance of the evidence of Ms A and Ms G, I accept Mr P’s evidence.
The question for the court therefore must be how [X]’s education can be best ameliorated from its current parlous state. It is a significant deficit of Ms Sands’ case that she has no fleshed out proposal to tend to [X]’s pressing schooling needs. It seems obvious [X] remaining at [omitted School] and in her predominate care is not a viable option, given her poisonous relationship with the school. On the other hand, Mr Moers has a good working basis with the school.
In 2009, [X]’s level of attendance at school was poor. This resulted in a notification of child abuse being made to the relevant authorities. During this period, [X] resided predominately with Ms Sands. In my view, no acceptable explanation has, as yet, been provided for this serious level of absenteeism.
In 2010, [X] attendance at school seems to have been better. However, Ms A remains concerned that [X] often arrives at school late and leaves school early. Again, Ms A holds Ms Sands responsible for this state of affairs. The evidence available to me indicates that [X] is currently failing at school and is behind the stipulated benchmarks for a child of his age.
Clearly, [X] will not achieve his full potential, either as a child or as an adult, if he is robbed of the opportunity to attend school regularly. There will be gaps in his knowledge. He will not be able to read and write adequately. He will not be able to do arithmetic. As a child, he will be an exception rather than an accepted part of the cohort of the children with whom he is enrolled at school.
If [X] is deprived of the opportunity to learn these elementary skills, his progress through primary school and on to high school will be problematic. His social skills are likely to be retarded because he will not interact as fully as other children do with their peers. If he is frequently late to classes, he may become singled out for mockery by other children. His attendance at school will be different to other children.
These factors are not helpful to children, of [X]’s age, in assisting them to enjoy participating in school and doing well there. To the contrary, they are likely to lead to a lack of routine and stability in a child’s life, which in turn may lead to serious problems at school, including truancy and perhaps, in time, delinquency.
For self-apparent reasons, a failed education is not conducive to an adult having a successful life. Without literacy and numeracy skills, a person cannot easily obtain meaningful employment. These issues may tip over into other aspects of a person’s life and be a factor in preventing that person forming close and loving relationships and being a fully functional parent in turn.
Accordingly, in my view, the duty to ensure a child attends school properly and has a regular education is one of the most fundamental and important responsibilities of being a parent. In the case to date, I am satisfied that the evidence currently indicates that [X] is not having a regular or normal education.
He is not permitted to access the internet, as all his school compadres are. Unexceptional school activities – such as pick up and drop off; sports days and swimming; and the provision of medical information; -are marked by conflict, which causes [X] distress. At this stage, it seems to me to be more likely than not that it is the actions of Ms Sands, which are robbing [X] of the opportunity to have such a regular education.
At this stage, the prognosis for [X] having a settled and satisfactory year at school in 2011 appears doubtful, particularly if the current arrangements are maintained. Mr Moers’ position is that he can work with Ms A and her colleagues to turn [X]’s behaviour and education around. At this stage, what Ms Sands proposes is unclear, other than she should have sole parental responsibility for [X].
If [X] continues to have a failed education, I have no doubt that this has the potential to cause his significant psychological harm. In addition, he may be robbed of his entitlement to achieve his full potential in life. In my view, notwithstanding the incomplete nature of the evidence, including the absence of any viable alternative, as proposed by Ms Sands, it remains incumbent upon the court to act decisively.
Ms A’s view is that [X] requires urgent counselling. Up to this stage Ms Sands has been resistant to the counselling offered by [omitted School], although she has apparently investigated some form of alternative counselling for [X].
The Independent Children’s Lawyer proposes that Mr Moers be ordered to obtain a mental health plan for [X]. It being Ms Lindsay’s submission that he is likely to be the more co-operative parent in terms of any liaison required between the school authorities and any psychologist and/or counsellor involved in the provision of such a mental health plan than Ms Sands. I agree.
At this stage, I believe that the best chance of improving [X]’s standard of education and his behaviour at school and so protecting him from the neglect arising from a failed education, is if there is a substantial change in the arrangements for his care, along the line proposed by the Independent Children’s Lawyer.
I accept that Mr Moers is far better placed to work with Ms A and the other staff at [omitted School], than Ms Sands, particularly given that she presents no other viable alternative school for him to attend and the independent expert cautions against changing [X]’s school, given his longstanding relationship with it and the standards of education and support available to him there.
Given the strength of [X]’s relationship with his mother, as evaluated by Mr P in the observed interaction phase of the Family Report, I am satisfied that [X] can continue to have a meaningful level of relationship with Ms Sands, notwithstanding there is such a significant change in arrangements for his care.
Additional considerations
a) The child’s views
[X] expressed to Mr P a desire to live with his parents for equal periods of time. Mr P considered that this view was probably influenced by [X]’s desire to appear even handed towards his parents, as a result of his exposure to the long standing conflict between them regarding arrangements for his care. Mr P’s opinion seems to me to be likely to me to be true.
In all the circumstances of this case, particularly [X]’s age and level of cognitive development. I do not think that his views are a determinative matter in this case.
b) The nature of the child’s relationship with each of his parents and significant others
As previously indicated, I accept Mr P’s opinion that [X] has a close and significant relationship with each of his parents. Under the existing care arrangements, [X] has spent consistent periods of time with both his father and his mother. As a result, these relationships will continue to be strong, regardless of the outcome of the case at this interim stage.
Ms Sands has two other children from an earlier relationship. They are [Y] born in 1992 and [Z] born in 1994. [Y] currently lives with her boyfriend. [Z] lives with Ms Sands. If I accede to the outcome propounded by the Independent Children’s Lawyer, it will mean that [X] will spend significantly less time in the household, which he currently shares with his older half sibling [Z].
Given the gap in the ages between the two children concerned, Mr P was not greatly concerned at this outcome, considering that [Z] was likely to be more interested in spending time with his friends rather than with his younger brother. Accordingly I do not think this is a central consideration in the case.
During the course of the hearing on 9 December 2010, I was able to receive evidence from Ms Moers, who is [X]’s paternal grandmother. I am satisfied that she and [X] share a close and loving relationship with one another.
In the past, I have had occasion to consider evidence from Mr T, a family consultant, who was asked to oversee an exchange of [X] between his mother and Ms Moers. Mr T reported that [X] was happy to spend time with his grandmother.
At present, Mr Moers live with his mother. Accordingly [X] spends regular periods of time in his paternal grandmother’s home. Ms Moers has indicated her willingness to assist the father in parenting [X], if there is change in the current arrangements. She would be able to take leave from her current employment to this end.
In my view, the strength of the connection between [X] and his paternal grandmother is an important consideration. It will assist [X] to accommodate any change to living for longer periods of time with his father in the short to medium term.
c) The willingness and the ability of the parties to encourage a close and continuing relationship between the child and the other parent
The legislation requires me to consider the extent to which both parties have fulfilled or failed to fulfil their responsibilities as parents [Family Law Act 1975 section 60CC(4)]. One of these responsibilities is the facilitation of a meaningful relationship between any child concerned and the other of his or her parents.
The parties are clearly poorly disposed to one another. In such circumstances, questions must arise regarding their respective capacity to support [X]’s relationship with the other parent. At this stage, I am not in a position to determine definitively who of the parties is the better option in this regard.
It also seems to be the position that both parties are capable of unilateral parenting actions in respect to [X], particularly in respect of medical issues pertaining to him. This has continued to drive the conflict between the parties with disastrous consequences for [X].
I am troubled by the issue of the outstanding school fees for [X]. In my view, the forbearance of the authorities at [omitted School], in this regard, is remarkable. One of the duties of being a parent is to discharge financial obligations in respect of one’s child.
In the case of [X]’s school fees, it is clearly the case that this obligation has not been discharged. I was told that Mr Moers is now making arrangements to pay the outstanding fees on an instalment basis. It has long been Ms Sands’ position, as evidence by the post-it note, which she delivered to the school, that she believes the school fees have nothing to do with her.
Ms A has been concerned at the length of time it has taken Ms Sands to provide her with a health care plan for [X] and for delays in respect of finalising arrangements for [X] to have school based counselling. She described the delay in 2008, one of around four months, for the completion of a parental referral to school based counselling for [X] as “remarkable.”
On the basis of the evidence available to me, at this stage, it seems to me that Mr Moers is, on balance, the better placed person to discharge the responsibilities involved in parenting, including supporting [X]’s educational and counselling needs.
d) The likely effect on the child of any changes in his circumstances
Assessing the effects of changes and separations are at the heart of this difficult case. Obviously, this cannot be a precise exercise, particularly at the interim stage. It must involve some degree of speculation, influenced by what I consider to be the best outcome for [X], until the final hearing can be completed.
It is the submission of Mr Childs, counsel for the mother, that it is inappropriate for the court to consider any drastic change in long standing arrangements for [X]’s care, until it is able to evaluate all the evidence the parties wish to lead in the case.
In essence, Mr Childs argues that it would be imprudent of the court to interfere with the status quo concerning care arrangements for [X] given that the final hearing can be completed in about six months time.
On the other hand, it is the position of both Ms Moers and the Independent Children’s Lawyer that the situation concerning [X] is so serious it is incumbent upon the court to take urgent steps, notwithstanding the long standing nature of the status quo pertaining to [X]’s care.
In the case of Goode & Goode the Full Court has disavowed any general principle that a status quo, in respect of arrangements for the care of a child, should be preserved at the interim stage. Rather, it is the responsibility of the court, both at the interim and final stage, to fashion orders which will best serve the best interests of any child concerned within the framework provided by Part VII of the Act particularly following its overall assessment of the various section 60CC factors.[11]
[11] See Goode & Goode (supra) 80,901 - 2
At this stage, I do not consider that a proper consideration of [X]’s best interests should dictate that he remain in the current long standing care arrangement. To the contrary, I think that to maintain the current arrangement would be disadvantageous to [X]. In making this assessment, I appreciate that I have not as yet had access to all the available evidence in the case.
e) The practical difficulties and expense of the child spending time and communicating with each of his parents
The parties currently live in reasonable proximity to one another in suburban Adelaide. As such, there are no great practical difficulties in respect of [X] spending time with each of his parents, whatever is the outcome at this stage.
f) The capacity of the parties to provide for the child’s emotional and educational needs
g) The attitude that each parent has demonstrated to the responsibilities of being a parent
At this stage, on the basis of the evidence led before me, particularly from Ms A and Ms G, I have grave reservations about Ms Sands’ capacity to provide for [X]’s educational needs. [X] is clearly failing at school.
For reasons already provided, it seems more likely than not that Ms Sands is contributing towards this failure. It is also clear that she is unwilling to work constructively with Ms A and her staff and they, in turn, do not believe they can work effectively with Ms Sands.
The evidence indicates that when [X] is provided with homework to do outside of school hours. He completes this work, when he is with his father for around “95%” of the time, but when he is with his mother, he does not complete any of this work. This is but one example where I am satisfied that the father has established himself as the parent with a greater capacity to provide for [X]’s pressing educational needs. In my view, this is a very significant factor indeed.
Although I accept that [X] has a close and loving relationship with his mother, it also seems to me likely that Mr Moers is better placed to provide for [X] emotional needs, particularly in terms of boosting his self-esteem in the school setting and normalising his relationships at [omitted School]. These factors militate strongly in favour of the outcome advocated by the Independent Children’s Lawyer.
h) The child’s maturity, sex, lifestyle and background
i) Aboriginality
In the context of this case, these criteria do not appear to be specifically relevant.
j) Family violence orders
k) Any family violence order
I have already alluded to the issue of family violence. It would seem to be the case that both parties, in the past, frequently attempted to invoke police authority against the other because of family violence concerns. At this stage, I am not able to fully evaluate this aspect of the case.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
Regrettably, this case is currently far from complete. Accordingly any outcome must necessarily be a provisional one. In particular, the orders sought by the Independent Children’s Lawyer, envisage Mr P revisiting the family, if there is a change of arrangements in his care, to ascertain how [X] is faring under the new arrangements.
In conducting this update, the Independent Children’s Lawyer anticipates that Mr P will consult, once again, with Ms A and [X]’s classroom teacher. By this stage, it is hoped that it will be possible to ascertain whether [X] is progressing better at school and whether he is being assisted by the mental health plan proposed by the Independent Children’s Lawyer.
For all these reasons, it is impossible for the case to be completed at this stage. In my view, it is impossible to ascertain what outcome, at this stage, is the one least likely to lead to the institution of further proceedings between the parties. In addition, any orders made at the interim stage, can be subject to revision once all the evidence has been led before the court, if this is appropriate.
Conclusions
In my view, it would be neither appropriate nor in [X]’s best interests for the presumption of equal shared parental responsibility to be applied to his care. This being the case, it is not necessary for me to consider the provisions contained in section 65DAA of the Act.
Rather, I must focus on the criteria provided by section 60CC and determine what is the outcome which I consider will best serve [X]’s interests at this interim stage. What is clear to me is that the current arrangements, for [X], are not working, particularly in terms of the satisfaction of his pressing educational needs.
As such, it seem apparent that there must be a change in the arrangements for [X]’s care, with the intent of normalising his attendance at school and ensuring that he receives the necessary support required to remedy his fallen academic standards. The pressing need for this support mandates a change from [X] living predominately with his mother to an arrangement where he lives more with his father.
Like Mr P, I was impressed with the dedication and professionalism of Ms A. I accept that [omitted School] is a good school, which continues to have much to offer [X]. [X] has attended at [omitted School] since his reception year. As a result, the school authorities are familiar with his needs and circumstances. As such, it is Mr P’s opinion it would not be good for [X] to try another school.
For a variety of reasons, Ms Sands is not well disposed towards [omitted School]. A state of affairs reciprocated so far as Ms A and her staff are concerned for Ms Sands. No matter where the fault lies, it is clear to me that Ms Sands and [omitted School] are incapable of working constructively together to provide [X] with the support that he so urgently needs.
At this stage, I can see no viable alternative for [X], other than that he continues at [omitted School], where it is hoped that he can receive counselling and remedial educational support. In my view, the evidence at this stage indicates that Mr Moers is better placed than Ms Sands to ensure that [X] does have a mental health plan and is provided with the emotional support that he needs to do better at school.
I appreciate that it is a significant thing to change long standing arrangements for a child in the middle of a final hearing, particularly given that I have not heard evidence from the parents concerned. However, I am satisfied that [X] is currently a child gravely in risk of education failure, which of itself has implications for his long term well being. As such, I am satisfied that serious remedial measures need to be taken to prevent this situation becoming more entrenched.
I am usually loathed to place parental responsibility, for a child, in the hands of one parent alone. However, at this juncture, it is apparent to me that the parties are unable to discuss issues to do with [X]’s educational and health needs in any fashion whatsoever, yet alone a constructive one. This state of affairs means that one parent must be conferred with the responsibility for making decisions about [X]’s education and health issues.
Given that I have determined that [X]’s best interests will be served if he lives more with one parent than another, at this stage, necessarily this parent must be Mr Moers, who is better placed, it seems to me, to work with [X]’s school and ensure he receives appropriate counselling and other psychological support.
In this regard, I will accede to the Independent Children’s Lawyer’s submissions that Mr Moers liaise with his general medical practitioner, so that [X] has a mental heath care plan and is able to obtain a referral for appropriate psychological counselling.
Pursuant to section 65DAE, parents do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
At this stage, I am satisfied that Mr Moers is better placed to ensure that [X] completes any homework set for him and attends at school regularly and for the full day. It also seems to be the case that Mr Moers will be able to negotiate [X]’s return to the out of hours school care program at [omitted School].
The level of conflict between the parents in this case is extraordinary. I accept that it is having a detrimental effect on [X]. As such, it seems that the parties have to be quarantined from one another, particularly on school premises and at other activities in which [X] engages.
In addition, Ms A has been concerned about aspects of Ms Sands’ behaviour on the school premises, particularly her photographing of [X] and other parents and her threat to have a private investigator attend at the school to provide surveillance of [X]. As a consequence, I will make the orders proposed by the Independent Children’s Lawyer to deal with these issues.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and eighty-three (183) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 24 January 2011
3
3
1